1. G.R. No.

100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into focus in this petition for
prohibition, with prayer for a restraining order and preliminary injunction. The petitioners ask us to prohibit public respondent CHR
from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."

The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one of the petitioners) in his capacity
as an Executive Officer of the Quezon City Integrated Hawkers Management Council under the Office of the City Mayor, was sent to,
and received by, the private respondents (being the officers and members of the North EDSA Vendors Association, Incorporated). In
said notice, the respondents were given a grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned
premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private respondents were informed by petitioner Quimpo
that their stalls should be removed to give way to the "People's Park". 2 On 12 July 1990, the group, led by their President Roque
Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against the petitioners, asking the late CHR
Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-sari stores, and carinderia along North EDSA. The complaint was docketed as CHR
Case No. 90-1580. 3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and
shanties at North EDSA pending resolution of the vendors/squatters' complaint before the Commission" and ordering said petitioners
to appear before the CHR. 4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as CHR's own ocular inspection,
and convinced that on 28 July 1990 the petitioners carried out the demolition of private respondents' stalls, sari-sari stores
and carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of financial assistance of not more than
P200,000.00 in favor of the private respondents to purchase light housing materials and food under the Commission's supervision and
again directed the petitioners to "desist from further demolition, with the warning that violation of said order would lead to a citation
for contempt and arrest." 6

A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred, among other things, that:

1. this case came about due to the alleged violation by the (petitioners) of the Inter-Agency Memorandum of
Agreement whereby Metro-Manila Mayors agreed on a moratorium in the demolition of the dwellings of poor
dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to therein refers to moratorium in the
demolition of the structures of poor dwellers;

4. that the complainants in this case (were) not poor dwellers but independent business entrepreneurs even this
Honorable Office admitted in its resolution of 1 August 1990 that the complainants are indeed, vendors;

5. that the complainants (were) occupying government land, particularly the sidewalk of EDSA corner North
Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and authority whether or not a certain
business establishment (should) be allowed to operate within the jurisdiction of Quezon City, to revoke or cancel a
permit, if already issued, upon grounds clearly specified by law and ordinance. 8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners likewise manifested that they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the Commission's authority should
be understood as being confined only to the investigation of violations of civil and political rights, and that "the rights allegedly
violated in this case (were) not civil and political rights, (but) their privilege to engage in business." 9

On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with the contempt charge that had
meantime been filed by the private respondents, albeit vigorously objected to by petitioners (on the ground that the motion to dismiss
was still then unresolved). 10

In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the demolition of the stalls, sari-
sari stores and carinderia despite the "order to desist", and it imposed a fine of P500.00 on each of them.

On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental motion to dismiss, in this
wise:
1
 Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction over the complaint filed
by the squatters-vendors who complained of the gross violations of their human and constitutional rights. The
motion to dismiss should be and is hereby DENIED for lack of merit. 13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper tiger limited only to
investigating civil and political rights, but it (should) be (considered) a quasi-judicial body with the power to provide appropriate legal
measures for the protection of human rights of all persons within the Philippines . . . ." It added:

The right to earn a living is a right essential to one's right to development, to life and to dignity. All these brazenly
and violently ignored and trampled upon by respondents with little regard at the same time for the basic rights of
women and children, and their health, safety and welfare. Their actions have psychologically scarred and
traumatized the children, who were witness and exposed to such a violent demonstration of Man's inhumanity to
man.

In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.

Hence, this recourse.

The petition was initially dismissed in our resolution 15 of 25 June 1991; it was subsequently reinstated, however, in our resolution 16 of
18 June 1991, in which we also issued a temporary restraining order, directing the CHR to "CEASE and DESIST from further hearing
CHR No. 90-1580." 17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls were demolished by the
petitioners at the instance and authority given by the Mayor of Quezon City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his comment for public respondent CHR.
The latter thus filed its own comment, 18 through Hon. Samuel Soriano, one of its Commissioners. The Court also resolved to dispense
with the comment of private respondent Roque Fermo, who had since failed to comply with the resolution, dated 18 July 1991,
requiring such comment.

The petition has merit.

The Commission on Human Rights was created by the 1987

Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive Order No. 163, 20 issued on 5 May 1987,
in the exercise of her legislative power at the time. It succeeded, but so superseded as well, the Presidential Committee on Human
Rights. 21

The powers and functions 22 of the Commission are defined by the 1987 Constitution, thus: to

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and
political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as
well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of
human rights;

(6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to
victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other
evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;
2
 (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the members of the
Constitutional Commission is to make CHR a quasi-judicial body. 23 This view, however, has not heretofore been shared by this Court.
In Cario v. Commission on Human Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has
observed that it is "only the first of the enumerated powers and functions that bears any resemblance to adjudication or adjudgment,"
but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another court or quasi-
judicial agency in this country, or duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e.,
receive evidence and make findings of fact as regards claimed human rights violations involving civil and political
rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence
and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other kernel of this controversy and, its is, to determine the
extent of CHR's investigative power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it, albeit not a few have tried,
could at best be described as inconclusive. Let us observe. In a symposium on human rights in the Philippines, sponsored by the
University of the Philippines in 1977, one of the questions that has been propounded is "(w)hat do you understand by "human rights?"
The participants, representing different sectors of the society, have given the following varied answers:

Human rights are the basic rights which inhere in man by virtue of his humanity. They are the same in all parts of
the world, whether the Philippines or England, Kenya or the Soviet Union, the United States or Japan, Kenya or
Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and property; freedom of speech, of the press, of
religion, academic freedom, and the rights of the accused to due process of law; political rights, such as the right to
elect public officials, to be elected to public office, and to form political associations and engage in politics; and
social rights, such as the right to an education, employment, and social services. 25

Human rights are the entitlement that inhere in the individual person from the sheer fact of his humanity. . . .
Because they are inherent, human rights are not granted by the State but can only be recognized and protected by
it. 26

(Human rights include all) the civil, political, economic, social, and cultural rights defined in the Universal
Declaration of Human Rights. 27

Human rights are rights that pertain to man simply because he is human. They are part of his natural birth, right,
innate and inalienable. 28

The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant on Economic, Social and
Cultural Rights and International Covenant on Civil and Political Rights, suggests that the scope of human rights can be understood to
include those that relate to an individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the
term to the universally accepted traits and attributes of an individual, along with what is generally considered to be his inherent and
inalienable rights, encompassing almost all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional Commission in adopting the specific
provisions on human rights and in creating an independent commission to safeguard these rights? It may of value to look back at the
country's experience under the martial law regime which may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of the sentiments expressed by others,
comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil liberties, who, in his paper, entitled "Present State of
Human Rights in the Philippines," 29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of the human rights
expressed in the International Covenant, these rights became unavailable upon the proclamation of Martial Law on
21 September 1972. Arbitrary action then became the rule. Individuals by the thousands became subject to arrest
upon suspicion, and were detained and held for indefinite periods, sometimes for years, without charges, until
ordered released by the Commander-in-Chief or this representative. The right to petition for the redress of

3
 grievances became useless, since group actions were forbidden. So were strikes. Press and other mass media were
subjected to censorship and short term licensing. Martial law brought with it the suspension of the writ of habeas
corpus, and judges lost independence and security of tenure, except members of the Supreme Court. They were
required to submit letters of resignation and were dismissed upon the acceptance thereof. Torture to extort
confessions were practiced as declared by international bodies like Amnesty International and the International
Commission of Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the following discussions during its 26 August
1986 deliberations:

MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the importance of human rights and
also because civil and political rights have been determined by many international covenants and human rights
legislations in the Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent legislation.
Otherwise, if we cover such a wide territory in area, we might diffuse its impact and the precise nature of its task,
hence, its effectivity would also be curtailed.

So, it is important to delienate the parameters of its tasks so that the commission can be most effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights are very broad. The Article on the
Bill of Rights covers civil and political rights. Every single right of an individual involves his civil right or his
political right. So, where do we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in the language of human rights
advocates, as well as in the Universal Declaration of Human Rights which addresses a number of articles on the
right to life, the right against torture, the right to fair and public hearing, and so on. These are very specific rights
that are considered enshrined in many international documents and legal instruments as constituting civil and
political rights, and these are precisely what we want to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as defined in the Universal Declaration
of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political Rights distinguished
this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?

MR. GARCIA. Yes, because the other rights will encompass social and economic rights, and there are other
violations of rights of citizens which can be addressed to the proper courts and authorities.

xxx xxx xxx

MR. BENGZON. So, we will authorize the commission to define its functions, and, therefore, in doing that the
commission will be authorized to take under its wings cases which perhaps heretofore or at this moment are under
the jurisdiction of the ordinary investigative and prosecutorial agencies of the government. Am I correct?

MR. GARCIA. No. We have already mentioned earlier that we would like to define the specific parameters which
cover civil and political rights as covered by the international standards governing the behavior of governments
regarding the particular political and civil rights of citizens, especially of political detainees or prisoners. This
particular aspect we have experienced during martial law which we would now like to safeguard.

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really trying to say is, perhaps,
at the proper time we could specify all those rights stated in the Universal Declaration of Human Rights and defined
as human rights. Those are the rights that we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution. They are integral parts
of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of Rights covered by human
rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I would like to state that in the past
regime, everytime we invoke the violation of human rights, the Marcos regime came out with the defense that, as a
matter of fact, they had defended the rights of people to decent living, food, decent housing and a life consistent with
human dignity.

4
So, I think we should really limit the definition of human rights to political rights. Is that the sense of the committee,
so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised by the previous speaker.

There are actually six areas where this Commission on Human Rights could act effectively: 1) protection of rights of
political detainees; 2) treatment of prisoners and the prevention of tortures; 3) fair and public trials; 4) cases of
disappearances; 5) salvagings and hamletting; and 6) other crimes committed against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

I would like to start by saying that I agree with Commissioner Garcia that we should, in order to make the proposed
Commission more effective, delimit as much as possible, without prejudice to future expansion. The coverage of the
concept and jurisdictional area of the term "human rights". I was actually disturbed this morning when the reference
was made without qualification to the rights embodied in the universal Declaration of Human Rights, although later
on, this was qualified to refer to civil and political rights contained therein.

If I remember correctly, Madam President, Commissioner Garcia, after mentioning the Universal Declaration of
Human Rights of 1948, mentioned or linked the concept of human right with other human rights specified in other
convention which I do not remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?

MR. GUINGONA. I do not know, but the commissioner mentioned another.

MR. GARCIA. Madam President, the other one is the International Convention on Civil and Political Rights of
which we are signatory.

MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal Declaration of Human
Rights here, I do not have a copy of the other covenant mentioned. It is quite possible that there are rights specified
in that other convention which may not be specified here. I was wondering whether it would be wise to link our
concept of human rights to general terms like "convention," rather than specify the rights contained in the
convention.

As far as the Universal Declaration of Human Rights is concerned, the Committee, before the period of
amendments, could specify to us which of these articles in the Declaration will fall within the concept of civil and
political rights, not for the purpose of including these in the proposed constitutional article, but to give the sense of
the Commission as to what human rights would be included, without prejudice to expansion later on, if the need
arises. For example, there was no definite reply to the question of Commissioner Regalado as to whether the right to
marry would be considered a civil or a social right. It is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights that we felt must be
envisioned initially by this provision freedom from political detention and arrest prevention of torture, right to
fair and public trials, as well as crimes involving disappearance, salvagings, hamlettings and collective
violations. So, it is limited to politically related crimes precisely to protect the civil and political rights of a specific
group of individuals, and therefore, we are not opening it up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking his concept or the
concept of the Committee on Human Rights with the so-called civil or political rights as contained in the Universal
Declaration of Human Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was referring to an
international instrument.

MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific article therein, but only to those
that pertain to the civil and politically related, as we understand it in this Commission on Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil and social rights.

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 MR. GARCIA. There are two international covenants: the International Covenant and Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights. The second covenant contains all the different
rights-the rights of labor to organize, the right to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those that the Gentlemen has
specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot stress more on how much
we need a Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and very few lawyers will accept clients who do not
pay. And so, they are the ones more abused and oppressed. Another reason is, the cases involved are very delicate
torture, salvaging, picking up without any warrant of arrest, massacre and the persons who are allegedly
guilty are people in power like politicians, men in the military and big shots. Therefore, this Human Rights
Commission must be independent.

I would like very much to emphasize how much we need this commission, especially for the little Filipino, the little
individual who needs this kind of help and cannot get it. And I think we should concentrate only on civil and
political violations because if we open this to land, housing and health, we will have no place to go again and we
will not receive any response. . . . 30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the Commission on
Human Rights to "investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and
political rights" (Sec. 1).

The term "civil rights," 31 has been defined as referring

(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to all its inhabitants, and are
not connected with the organization or administration of the government. They include the rights of property,
marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights
appertaining to a person by virtue of his citizenship in a state or community. Such term may also refer, in its general
sense, to rights capable of being enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution, unreasonable searches and seizures,
and imprisonment for debt. 32

Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the establishment or
administration of government, the right of suffrage, the right to hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of government. 34

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the delegates envisioned a
Commission on Human Rights that would focus its attention to the more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes committed against
the religious." While the enumeration has not likely been meant to have any preclusive effect, more than just expressing a statement of
priority, it is, nonetheless, significant for the tone it has set. In any event, the delegates did not apparently take comfort in peremptorily
making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to resolve, instead, that
"Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking
into account its recommendation." 35

In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-sari stores and carinderia, as
well as temporary shanties, erected by private respondents on a land which is planned to be developed into a "People's Park". More
than that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national highway.
The consequent danger to life and limb is not thus to be likewise simply ignored. It is indeed paradoxical that a right which is claimed
to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the
standards hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude that the order
for the demolition of the stalls, sari-sari stores and carinderia of the private respondents can fall within the compartment of "human
rights violations involving civil and political rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its authority in providing
in its revised rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite for contempt, however, should be
understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its

6
investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with
the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its
investigative work. The "order to desist" (a semantic interplay for a restraining order) in the instance before us, however, is not
investigatorial in character but prescinds from an adjudicative power that it does not possess. In Export Processing Zone Authority
vs. Commission on Human Rights, 36 the Court, speaking through Madame Justice Carolina Grio-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need protection" may not be construed to confer
jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is never
derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the Constitution refer to extrajudicial and
judicial remedies (including a writ of preliminary injunction) which the CHR may seek from proper courts on behalf
of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the
writ, for a writ of preliminary injunction may only be issued "by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . . A writ of
preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation
or protection of the rights and interests of a party thereto, and for no other purpose." (footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate
agency of government. 37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the vendors affected by the
demolition is not an appropriate issue in the instant petition. Not only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies with the appropriate administrative agencies concerned to initially
consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become moot and academic since the case
before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is merely awaiting final resolution. It is true that
prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act
already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580.
The instant petition has been intended, among other things, to also prevent CHR from precisely doing that. 39

WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights is hereby prohibited from
further proceeding with CHR Case No. 90-1580 and from implementing the P500.00 fine for contempt. The temporary restraining
order heretofore issued by this Court is made permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Puno, JJ., concur.

Separate Opinions

PADILLA, J., dissenting:

I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human rights, et al.," G.R. No. 96681, 2 December 1991, 204
SCRA 483 in relation to the resolution of 29 January 1991 and my dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view that the CHR can issue a cease and desist order
to maintain a status quo pending its investigation of a case involving an alleged human rights violation; that such cease and desist
order maybe necessary in situations involving a threatened violation of human rights, which the CHR intents to investigate.

In the case at bench, I would consider the threatened demolition of the stalls, sari-sari stores and carinderias as well as the temporary
shanties owned by the private respondents as posing prima facie a case of human rights violation because it involves an impairment of
the civil rights of said private respondents, under the definition of civil rights cited by the majority opinion (pp. 20-21) and which the
CHR has unquestioned authority to investigate (Section 18, Art. XIII, 1987 Constitution).

Human rights demand more than lip service and extend beyond impressive displays of placards at street corners. Positive action and
results are what count. Certainly, the cause of human rights is not enhanced when the very constitutional agency tasked to protect and
vindicate human rights is transformed by us, from the start, into a tiger without dentures but with maimed legs to boot. I submit the
CHR should be given a wide latitude to look into and investigate situations which may (or may not ultimately) involve human rights
violations.

ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for further proceedings.

7
 2. A.M. No. 1120-MJ May 5, 1976

DOMINADOR C. BALDOZA, complainant,

vs.
HON. JUDGE RODOLFO B. DIMAANO, respondent.

RESOLUTION

ANTONIO, J.:

In a verified letter-complaint dated September 9, 1975, the Municipal Secretary of Taal, Batangas, charges Municipal Judge Rodolfo
B. Dimaano, of the same municipality, with abuse of authority in refusing to allow employees of the Municipal Mayor to examine the
criminal docket records of the Municipal Court to secure data in connection with their contemplated report on the peace and order
conditions of the said municipality. Respondent, in answer to the complaint, stated that there has never been an intention to refuse
access to official court records; that although court records are among public documents open to inspection not only by the parties
directly involved but also by other persons who have legitimate interest to such inspection, yet the same is always subject to
reasonable regulation as to who, when, where and how they may be inspected. He further asserted that a court has unquestionably the
power to prevent an improper use or inspection of its records and the furnishing of copies therefrom may be refused where the person
requesting is not motivated by a serious and legitimate interest but acts out of whim or fancy or mere curiosity or to gratify private
spite or to promote public scandal.

In his answer, the respondent significantly observed:

Restrictions are imposed by the Court for fear of an abuse in the exercise of the right. For fear that the dirty hands of
partisan politics might again be at play, Some of the cases filed and decided by the Court after the declaration of
Martial Law and years after the election still bore the stigma of partisan politics as shown in the affidavits and
testimonies of witnesses.

Without casting aspersion on any particular individual, it is worth mentioning, that the padlocks of the door of the
Court has recently been tampered by inserting papers and matchsticks.

Under the circumstances, to allow an indiscriminate and unlimited exercise of the right to free access, might do
more harm than good to the citizenry of Taal. Disorder and chaos might result defeating the very essence of their
request. The undersigned is just as interested as Mr. Baldoza in the welfare of the community and the preservation of
our democratic principles.

Be that as it may, a request of this magnitude cannot be immediately granted without adequate deliberation and upon
advisement, especially so in this case where the undersigned doubts the propriety of such request. Hence, it is
believed that authority should first be secured from the Supreme Court, through the Executive Judge, for the
formulation of guidelines and policies on this matter.

The case was thereupon referred to Judge Francisco Mat. Riodique for investigation and report. At the preliminary hearing on October
16, 1975, Taal Mayor Corazon A. Caniza filed a motion to dismiss the complaint to preserve harmony and (cooperation among
officers in the same municipality. This motion was denied by the Investigating Judge, but after formal investigation, he recommended
the exoneration of respondent. Pertinent portion of his report reads as follows:

* * * When this case was heard, complainant Dominador Baldoza informed the Court that he is aware of the motion
to dismiss filed by Mayor Corazon A. Caniza and that he is in conformity with the dismissal of the administrative
charge against Judge Rodolfo Dimaano. The Court asked him if he could prove his case and he said he can. So, the
Court denied his oral motion to dismiss and required him to present his evidence. Complainant only manifested to
the Court that he has no oral evidence. The only evidence he has are the exchanged communication which were all
in writing and attached to the record between him and the respondent. The Court asked the respondent what he has
to say on the documentary evidence of the complainant. He manifested that all his answers to the complaint are all
embodied in his answers filed with the Court.

A careful perusal, scrutiny, and study of the communications between the complainant and the respondent, together
with the answers filed by the latter, reveal that there is no showing of abuse of authority on the part of the
respondent. The respondent allowed the complainant to open and view the docket books of the respondent under
certain conditions and under his control and supervision. Complainant admitted that he was aware of the rules and
conditions imposed by the respondent when he went to his office to view his docket books for the purpose
mentioned in his communication. He also agreed that he is amenable to such rules and conditions which the
respondent may impose. Under these conditions, therefore, the Court finds that the respondent has not committed
any abuse of authority.

The complainant was warned to be more cautious in filing any administrative charge against any public official
especially, members of the judiciary, considering that an administrative charge against a member of the judiciary
may expose the latter to public ridicule and scandal thereby minimizing if not eradicating public trust and

After a careful evaluation of the recommendation, We find that the respondent did not act arbitrarily in the premises. As found by the
Investigating Judge, the respondent allowed the complainant to open and view the docket books of respondent certain conditions and
under his control and supervision. it has not been shown that the rules and conditions imposed by the respondent were unreasonable.
8
The access to public records predicated on the right of the people to acquire information on matters of public concern. Undoubtedly in
a democracy, the public has a legitimate interest in matters of social and political significance. In an earlier case, 1 this Court held that
mandamus would lie to compel the Secretary of Justice and the Register of Deeds to examine the records of the latter office.
Predicating the right to examine the records on statutory provisions, and to a certain degree by general principles of democratic
institutions, this Court stated that while the Register of Deeds has discretion to exercise as to the manner in which persons desiring to
inspect, examine or copy the records in his office may exercise their rights, such power does not carry with it authority to prohibit.
Citing with approval People ex rel. Title Guarantee & T. Co. vs. Railly, 2 this Court said:

The subject is necessarily committed, to a great degree, 'to his (register of deeds') discretion as to how much of the
conveniences of the office are required to be preserved for the accomodation of these persons. It is not his duty to
permit the office to be thronged needlessly with persons examining its books of papers, but it is his duty to regulate,
govern, and control his office in such a manner as to permit the statutory advantages to be enjoyed by other persons
not employed by him as largely and extensibly as that consistently can be done * * *. What the law expects and
requires from him is the exercise of an unbiased and impartial judgment, by which all persons resorting to the office,
under legal authority, and conducting themselves in an orderly manner, shall be secured their lawful rights and
privileges, and that a corporation formed in the manner in which the relator has been, shall be permitted to obtain all
the information either by searches, abstracts, or copies, that the law has entitled it to obtain.

Except, perhaps, when it is clear that the purpose of the examination is unlawful, or sheer, Idle curiosity, we do not
believe it is the duty under the law of registration officers to concern themselves with the motives, reasons, and
objects of the person seeking access to the records. It is not their prerogative to see that the information which the
records contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the officials having custody thereof which is called upon to
devise a remedy. As to the moral or material injury which the publication might inflict on other parties, that is the
publisher's responsibility and lookout. The publication is made subject to the consequences of the law.

The concurring opinion of Justice Briones predicated such right not on statutory grounds merely but on the constitutional right of the
press to have access to information as the essence of press freedom. 3

The New Constitution now expressly recognizes that the people are entitled to information on matters of public concern and thus are
expressly granted access to official records, as well as documents of official acts, or transactions, or decisions, subject to such
limitations imposed by law. 4 The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful
democratic decision making if they are denied access to information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases. " 5 However,
restrictions on access to certain records may be imposed by law. Thus, access restrictions imposed to control civil insurrection have
been permitted upon a showing of immediate and impending danger that renders ordinary means of control inadequate to maintain
order. 6

WHEREFORE, the case against respondent is hereby dismissed.

9
 3. G.R. No. 182601 November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and RONALD
MUNOZ,Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court challenging the decision 1dated January 21, 2008
and the resolution2 dated April 17, 2008 of the Court of Appeals (CA) in CAG.R. SP No. 91541.

The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial Court (RTC), Branch 96, Quezon City, denying
Joey M. Pestilos, Dwight Macapanas, Miguel Gaces, Jerry Fernandez, and Ronald Munoz's (petitioners) Urgent Motion for Regular
Preliminary Investigation, as well as their subsequent motion for reconsideration.

The Antecedent Facts

The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning, an altercation ensued between the petitioners
and Atty. Moreno Generoso (Atty. Generoso) at Kasiyahan Street, Barangay Holy Spirit, Quezon City where the petitioners and Atty.
Generoso reside.3

Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station) to report the incident. 4Acting on this report,
Desk Officer SPOl Primitivo Monsalve (SPOJ Monsalve) dispatched SP02 Dominador Javier (SP02 Javier) to go to the scene of the
crime and to render assistance.5 SP02 Javier, together with augmentation personnel from the Airforce, A2C Alano Sayson and Airman
Ruel Galvez, arrived at the scene of the crime less than one hour after the alleged altercation 6 and they saw Atty. Generoso badly
beaten.7

Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted the police officers to "invite" the petitioners to
go to Batasan Hills Police Station for investigation.8 The petitioners went with the police officers to Batasan Hills Police Station.9 At
the inquest proceeding, the City Prosecutor of Quezon City found that the petitioners stabbed Atty. Generoso with a bladed weapon.
Atty. Generoso fortunately survived the attack.10

In an Information dated February 22, 2005, the petitioners were indicted for attempted murder allegedly committed as follows:

That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said accused, conspiring together, confederating
with and mutually helping one another, with intent to kill, qualified with evident premeditation, treachery and taking advantage of
superior strength, did then and there, willfully, unlawfully and feloniously commence the commission of the crime of Murder directly
by overt acts, by then and there stabbing one Atty. MORENO GENEROSO y FRANCO, with a bladed weapon, but said accused were
not able to perform all the acts of execution which would produce the crime of Murder by reason of some cause/s or accident other
than their own spontaneous desistance, that is, said complainant was able to parry the attack, to his damage and prejudice.

CONTRARY TO LAW.11

On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary Investigation 12 on the ground that they had not been
lawfully arrested. They alleged that no valid warrantless arrest took place since the police officers had no personal knowledge that
they were the perpetrators of the crime. They also claimed that they were just "invited" to the police station. Thus, the inquest
proceeding was improper, and a regular procedure for preliminary investigation should have been performed pursuant to Rule 112 of
the Rules of Court.13

On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for Regular Preliminary Investigation. 14 The
court likewise denied the petitioners' motion for reconsideration. 15

The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition for certiorari. They attributed grave abuse of
discretion, amounting to lack or excess of jurisdiction, on the R TC for the denial of their motion for preliminary investigation.16

The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the petition for lack of merit. 17 The CA ruled that the word "invited" in the
Affidavit of Arrest executed by SP02 Javier carried the meaning of a command. The arresting officer clearly meant to arrest the
petitioners to answer for the mauling of Atty. Generoso. The CA also recognized that the arrest was pursuant to a valid warrantless
arrest so that an inquest proceeding was called for as a consequence. Thus, the R TC did not commit any grave abuse of discretion in
denying the Urgent Motion for Regular Preliminary Investigation.

The CA saw no merit in the petitioners' argument that the order denying the Urgent Motion for Regular Preliminary Investigation is
void for failure to clearly state the facts and the law upon which it was based, pursuant to Rule 16, Section 3 of the Revised Rules of
Court. The CA found that the RTC had sufficiently explained the grounds for the denial of the motion.

10
The petitioners moved for reconsideration, but the CA denied the motion in its Resolution of April 17, 2008;18hence, the present
petition.

The Issues

The petitioners cited the following assignment of errors:

I.

WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT A WARRANT.

II.

WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN THEY WERE MERELY INVITED
TO THE POLICE PRECINCT.

III.

WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY INVESTIGATION IS VOID FOR
FAILURE TO STATE THE FACTS AND THE LAW UPON WHICH IT WAS BASED.

The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever issued; they went to the police station
only as a response to the arresting officers' invitation. They even cited the Affidavit of Arrest, which actually used the word "invited. "

The petitioners also claim that no valid warrantless arrest took place under the terms of Rule 112, Section 7 of the Revised Rules of
Court. The incident happened two (2) hours before the police officers actually arrived at the crime scene. The police officers could not
have undertaken a valid warrantless arrest as they had no personal knowledge that the petitioners were the authors of the crime.

The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for Regular Preliminary Investigation is void
because it was not properly issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order. The criminal proceedings against the petitioners should now
proceed.

It is unfortunate that the kind of motion that the petitioners filed has to reach this Court for its resolution. The thought is very tempting
that the motion was employed simply to delay the proceedings and that the use of Rule 65 petition has been abused.

But accepting things as they are, this delay can be more than compensated by fully examining in this case the legalities surrounding
warrantless warrants and establishing the proper interpretation of the Rules for the guidance of the bench and the bar. These Rules
have evolved over time, and the present case presents to us the opportunity to re-trace their origins, development and the current
applicable interpretation.

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and the 1935,20 197321 and 198722Constitutions all
protect the right of the people to be secure in their persons against unreasonable searches and seizures. Arrest falls under the term
"seizure. "23

This constitutional mandate is identical with the Fourth Amendment of the Constitution of the United States. The Fourth Amendment
traces its origins to the writings of Sir Edward Coke 24 and The Great Charter of the Liberties of England (Magna Carta Libertatum),
sealed under oath by King John on the bank of the River Thames near Windsor, England on June 15, 1215. 25 The Magna Carta
Libertatum limited the King of England's powers and required the Crown to proclaim certain liberties 26 under the feudal vassals' threat
of civil war.27 The declarations in Chapter 29 of the Magna Carta Libertatum later became the foundational component of the Fourth
Amendment of the United States Constitution.28 It provides:

No freeman shall be taken, or imprisoned, or be disseised 29 of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or
any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the
Land, We will sell to no man, we will not deny or defer to any man either Justice or Right. 30 [Emphasis supplied]

In United States v. Snyder,31 the United States Supreme Court held that this constitutional provision does not prohibit arrests, searches
and seizures without judicial warrant, but only those that are unreasonable. 32 With regard to an arrest, it is considered a seizure, which
must also satisfy the test of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless arrests. The Court based these rulings on
the common law of America and England that, according to the Court, were not different from the Spanish laws.34 These court rulings
likewise justified warrantless arrests based on the provisions of separate laws then existing in the Philippines. 35

11
In 1905, the Court held in The United States v. Wilson 36 that Section 3737 of Act No. 183, or the Charter of Manila, defined the
arresting officer's power to arrest without a warrant, at least insofar as the City of Manila was concerned.

In The United States v. Vallejo, et al.,38 the Court held that in the absence of any provisions under statutes or local ordinances, a police
officer who held similar functions as those of the officers established under the common law of England and America, also had the
power to arrest without a warrant in the Philippines.

The Court also ruled in The United States v. Santos39 that the rules on warrantless arrest were based on common sense and reason. 40 It
further held that warrantless arrest found support under the then Administrative Code 41which directed municipal policemen to exercise
vigilance in the prevention of public offenses.

In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of the Provisional Law for the Application of the Penal
Code which were provisions taken from the Spanish Law.

These rules were subsequently established and incorporated in our Rules of Court and jurisprudence. Presently, the requirements of a
warrantless arrest are now summarized in Rule 113, Section 5 which states that: Section 5. Arrest without warrant; when lawful. - A
peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(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 is temporarily confined while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forth with delivered to the nearest
police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

A warrantless arrest under the circumstances contemplated under Section 5(a) above has been denominated as one "in flagrante
delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. 44

For purposes of this case, we shall focus on Section 5(b) the provision applicable in the present case. This provision has undergone
changes through the years not just in its phraseology but also in its interpretation in our jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the applicable American and Philippine jurisprudence to fully
understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and English common law principle on warrantless arrests but also on
laws then existing in the Philippines. In Fortaleza, 45 the Court cited Rule 28 of the Provisional Law for the Application of the Penal
Code which provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained, persons whom there is reasonable ground to
believe guilty of some offense. It will be the duty of the authorities, as well as of their agents, to arrest:

First. Such persons as may be arrested under the provisions of rule 27.

Second. A person charged with a crime for which the code provides a penalty greater than that of confinamiento.

Third. A person charged with a crime for which the code provides a penalty less than that of confinamiento, if his antecedents or the
circumstances of the case would warrant the presumption that he would fail to appear when summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however, to a defendant who gives sufficient bond, to the satisfaction of the
authority or agent who may arrest him, and who it may reasonably be presumed will appear whenever summoned by the judge or
court competent to try him.

Fourth. A person coining under the provisions of the preceding paragraph may be arrested, although no formal complaint has been
filed against him, provided the following circumstances are present:

First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to a crime had been committed.

Second. That the authority or agent had sufficient reason to believe that the person arrested participated in the commission of such
unlawful act or crime." [Emphasis and underscoring supplied]
12
In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which provided that certain officials, including
police officers may, within the territory defined in the law, pursue and arrest without warrant, any person found in suspicious places or
under suspicious circumstances, reasonably tending to show that such person has committed, or is about to commit any crime or
breach of the peace.

In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer may arrest persons walking in the street at night when
there is reasonable ground to suspect the commission of a crime, although there is no proof of a felony having been committed.

The Court ruled in Santos that the arresting officer must justify that there was a probable cause for an arrest without a warrant. The
Court defined probable cause as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves as to
warrant a reasonable man in believing that the accused is guilty. Besides reasonable ground of suspicion, action in good faith is
another requirement. Once these conditions are complied with, the peace officer is not liable even if the arrested person turned out to
be innocent.

Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not necessary for the arresting officer to first
have knowledge that a crime was actually committed. What was necessary was the presence of reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime; and that the same grounds exist to believe that the person sought
to be detained participated in it. In addition, it was also established under the old court rulings that the phrase "reasonable suspicion"
was tantamount to probable cause without which, the warrantless arrest would be invalid and the arresting officer may be held liable
for its breach.48

In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a Chinaman because the arresting person did not state in what
way the Chinaman was acting suspiciously or the particular act or circumstance which aroused the arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of Court of the rules on warrantless arrests, the gauge for a valid
warrantless arrest was the arresting officer's reasonable suspicion (probable cause) that a crime was committed and the person sought
to be arrested has participated in its commission. This principle left so much discretion and leeway on the part of the arresting officer.
However, the 1940 Rules of Court has limited this discretion.

B. The 1940 Rules of Court

(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially incorporated in Section 6, Rule 109
of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has
committed it;

(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. [Emphasis and underscoring supplied]

These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court. Notably, the 1940 and 1964 Rules have
deviated from the old rulings of the Court. Prior to the 1940 Rules, the actual commission of the offense was not necessary in
determining the validity of the warrantless arrest. Too, the arresting officer's determination of probable cause (or reasonable suspicion)
applied both as to whether a crime has been committed and whether the person to be arrested has committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be actual commission of an offense, thus,
removing the element of the arresting officer's "reasonable suspicion of the commission of an offense." Additionally, the
determination of probable cause, or reasonable suspicion, was limited only to the determination of whether the person to be arrested
has committed the offense. In other words, the 1940 and 1964 Rules of Court restricted the arresting officer's discretion in warrantless
arrests under Section 6(b), Rule 113 of the 1964 Rules of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was re-worded and re-numbered when it
became Section 5, Rule 113 of the 1985 Rules of Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense;

13
 (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. [Emphasis and underscoring supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions introduced under the 1964 Rules of Court.
More importantly, however, it added a qualification that the commission of the offense should not only have been "committed" but
should have been "just committed." This limited the arresting officer's time frame for conducting an investigation for purposes of
gathering information indicating that the person sought to be arrested has committed the crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the incorporation of the word "probable
cause" as the basis of the arresting officer's determination on whether the person to be arrested has committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure provides that:

When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.

From the current phraseology of the rules on warrantless arrest, it appears that for purposes of Section S(b ), the following are the
notable changes: first, the contemplated offense was qualified by the word "just," connoting immediacy; and second, the warrantless
arrest of a person sought to be arrested should be based on probable cause to be determined by the arresting officer based on his
personal knowledge of facts and circumstances that the person to be arrested has committed it.

It is clear that the present rules have "objectified" the previously subjective determination of the arresting officer as to the (1)
commission of the crime; and (2) whether the person sought to be arrested committed the crime. According to Feria, these changes
were adopted to minimize arrests based on mere suspicion or hearsay. 51

As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure are: first, an offense has
just been committed; and second, the arresting officer has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.

For purposes of this case, we shall discuss these elements separately below, starting with the element of probable cause, followed by
the elements that the offense has just been committed, and the arresting officer's personal knowledge of facts or circumstances that the
person to be arrested has committed the crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable cause

The existence of "probable cause" is now the "objectifier" or the determinant on how the arresting officer shall proceed on the facts
and circumstances, within his personal knowledge, for purposes of determining whether the person to be arrested has committed the
crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,52 the U.S. Supreme Court held that the Fourth Amendment of the Federal Constitution does not prohibit
arrests without a warrant although such arrests must be reasonable. According to State v. Quinn, 53 the warrantless arrest of a person
who was discovered in the act of violating the law is not a violation of due process.

The U.S. Supreme Court, however indicated in Henry v. United States 54 that the Fourth Amendment limited the circumstances under
which warrantless arrests may be made. The necessary inquiry is not whether there was a warrant or whether there was time to get
one, but whether at the time of the arrest probable cause existed. The term probable cause is synonymous to "reasonable cause" and
"reasonable grounds."55

In determining the existence of probable cause, the arresting officer should make a thorough investigation and exercise reasonable
judgment. The standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in warrantless
arrest situation than in a case where a warrant is sought from a judicial officer. The probable cause determination of a warrantless
arrest is based on information that the arresting officer possesses at the time of the arrest and not on the information acquired later.56

In evaluating probable cause, probability and not certainty is the determinant of reasonableness under the Fourth Amendment.
Probable cause involves probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent
persons act. It is a pragmatic question to be determined in each case in light of the particular circumstances and the particular offense
involved.57

In determining probable cause, the arresting officer may rely on all the information in his possession, his fair inferences therefrom,
including his observations. Mere suspicion does not meet the requirements of showing probable cause to arrest without warrant
14
especially if it is a mere general suspicion. Probable cause may rest on reasonably trustworthy information as well as personal
knowledge. Thus, the arresting officer may rely on information supplied by a witness or a victim of a crime; and under the
circumstances, the arresting officer need not verify such information. 58

In our jurisdiction, the Court has likewise defined probable cause in the context of Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure.

In Abelita Ill v. Doria et al.,59 the Court held that personal knowledge of facts must be based on probable cause, which means an actual
belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A
reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making
the arrest.

i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, distinguished from probable cause in
preliminary investigations and the judicial proceeding for the issuance of a warrant of arrest

The purpose of a preliminary investigation is to determine whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty of the crime and should be held for triat. 60 In Buchanan v. Viuda de Esteban,61 we defined probable
cause as the existence of 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.

In this particular proceeding, the finding of the existence of probable cause as to the guilt of the respondent was based on the
submitted documents of the complainant, the respondent and his witnesses.62

On the other hand, probable cause in judicial proceedings for the issuance of a warrant of arrest is defined as the existence of such
facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the
person sought to be arrested.

Hence, before issuing a warrant of arrest, the judge must be satisfied 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. At this stage of the criminal proceeding,
the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he
personally evaluates the evidence in determining probable cause63 to issue a warrant of arrest.

In contrast, the arresting officer's determination of probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure is based on his personal knowledge of facts or circumstances that the person sought to be arrested has committed the crime.
These facts or circumstances pertain to actual facts or raw evidence, i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making.the arrest.

The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is
charged,64 or an actual belief or reasonable ground of suspicion, based on actual facts. 65

It is clear therefore that the standard for determining "probable cause" is invariable for the officer arresting without a warrant, the
public prosecutor, and the judge issuing a warrant of arrest. It is the existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested or held for
trial, as the case may be.

However, while the arresting officer, the public prosecutor and the judge all determine "probable cause," within the spheres of their
respective functions, its existence is influenced heavily by the available facts and circumstance within their possession. In short,
although these officers use the same standard of a reasonable man, they possess dissimilar quantity of facts or circumstances, as set by
the rules, upon which they must determine probable cause.

Thus, under the present rules and jurisprudence, the arresting officer should base his determination of probable cause on his personal
knowledge of facts and circumstances that the person sought to be arrested has committed the crime; the public prosecutor and the
judge must base their determination on the evidence submitted by the parties.

In other words, the arresting officer operates on the basis of more limited facts, evidence or available information that he must
personally gather within a limited time frame.

Hence, in Santos,66 the Court acknowledged the inherent limitations of determining probable cause in warrantless arrests due to the
urgency of its determination in these instances. The Court held that one should not expect too much of an ordinary policeman. He is
not presumed to exercise the subtle reasoning of a judicial officer. Oftentimes, he has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the escape of the criminal. 67

ii) Second and Third Elements of Section 5(b), Rule 113:

The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it

15
We deem it necessary to combine the discussions of these two elements as our jurisprudence shows that these were usually taken
together in the Court's determination of the validity of the warrantless arrests that were made pursuant to Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure.

In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on December 8, 1994. It was only on December 11, 1994 that
Chancellor Posadas requested the NBI's assistance. On the basis of the supposed identification of two (2) witnesses, the NBI attempted
to arrest Francis Carlo Taparan and Raymundo Narag three (3) days after the commission of the crime. With this set of facts, it cannot
be said that the officers have personal knowledge of facts or circumstances that the persons sought to be arrested committed the crime.
Hence, the Court invalidated the warrantless arrest.

Similarly, in People v. Burgos,69 one Cesar Masamlok personally and voluntarily surrendered to the authorities, stating that Ruben
Burgos forcibly recruited him to become a member of the NPA, with a threat of physical harm. Upon receipt of this information, a
joint team of PC-INP units was dispatched to arrest Burgos who was then plowing the field. Indeed, the arrest was invalid considering
that the only information that the police officers had in effecting the arrest was the information from a third person. It cannot be also
said in this case that there was certainty as regards the commission of a crime.

In People v. del Rosario,70 the Court held that the requirement that an offense has just been committed means that there must be a
large measure of immediacy between the time the offense was committed and the time of the arrest. If there was an appreciable lapse
of time between the arrest and the commission of the crime, a warrant of arrest must be secured.

The Court held that the arrest of del Rosario did not comply with these requirements because he was arrested only a day after the
commission of the crime and not immediately thereafter. Additionally, the arresting officers were not present and were not actual
eyewitnesses to the crime. Hence, they had no personal knowledge of facts indicating that the person to be arrested had committed the
offense. They became aware of del Rosario's identity as the driver of the getaway tricycle only during the custodial investigation.

In People v. Cendana,71 the accused was arrested one (1) day after the killing of the victim and only on the basis of information
obtained from unnamed sources. The unlawful arrest was held invalid.

In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the commission of the crime was held invalid because the crime had
not just been committed. Moreover, the "arresting" officers had no "personal knowledge" of facts indicating that the accused was the
gunman who had shot the victim. The information upon which the police acted came from statements made by alleged eyewitnesses to
the shooting; one stated that the accused was the gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in the name of the accused's wife. That information did not constitute "personal knowledge."

In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same day was held valid. In this case, the arresting officer had
knowledge of facts which he personally gathered in the course of his investigation, indicating that the accused was one of the
perpetrators.

In People v. Gerente,74 the policemen arrested Gerente only about three (3) hours after Gerente and his companions had killed the
victim. The Court held that the policemen had personal knowledge of the violent death of the victim and of facts indicating that
Gerente and two others had killed him. The warrantless arrest was held valid.

In People v. Alvario,75 the warrantless arrest came immediately after the arresting officers received information from the victim of the
crime. The Court held that the personal knowledge of the arresting officers was derived from the information supplied by the victim
herself who pointed to Alvario as the man who raped her at the time of his arrest. The Court upheld the warrantless arrest. In People v.
Jayson,76 there was a shooting incident. The policemen who were summoned to the scene of the crime found the victim. The
informants pointed to the accused as the assailant only moments after the shooting. The Court held that the arresting officers acted on
the basis of personal knowledge of the death of the victim and of facts indicating that the accused was the assailant. Thus, the
warrantless arrest was held valid.

In People v. Acol,77 a group held up the passengers in a jeepney and the policemen immediately responded to the report of the crime.
One of the victims saw four persons walking towards Fort Bonifacio, one of whom was wearing his jacket. The victim pointed them to
the policemen. When the group saw the policemen coming, they ran in different directions. The Court held that the arrest was valid.

In Cadua v. CA,78 there was an initial report to the police concerning a robbery. A radio dispatch was then given to the arresting
officers, who proceeded to Alden Street to verify the authenticity of the radio message. When they reached the place, they met with
the complainants who initiated the report about the robbery. Upon the officers' invitation, the victims joined them in conducting a
search of the nearby area where the accused was spotted in the vicinity. Based on the reported statements of the complainants, he was
identified as a logical suspect in the offense just committed. Hence, the arrest was held valid.

In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal Procedure does not require the arresting officers
to personally witness the commission of the offense.

In this case, P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa Sia about a shooting incident. He
dispatched a team headed by SP03 Ramirez to investigate the incident. SP03 Ramirez later reported that a certain William Sia was
wounded while Judge Abelita III, who was implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria
looked for Abelita III and when he found him, he informed him of the incident report. P/Supt. Doria requested Abelita III to go with
him to the police headquarters as he had been reported to be involved in the incident. Abelita III agreed but suddenly sped up his
vehicle and proceeded to his residence where P/Supt. Doria caught him up as he was about to run towards his house.

16
The police officers saw a gun in the front seat of the vehicle beside the driver's seat as Abelita III opened the door. They also saw a
shotgun at the back of the driver's seat. The police officers confiscated the firearms and arrested Abelita III. The Court held that the
petitioner's act of trying to get away, coupled with the incident report which they investigated, were enough to raise a reasonable
suspicion on the part of the police authorities as to the existence of probable cause. Based on these discussions, it appears that the
Court's appreciation of the elements that "the offense has just been committed" and ''personal knowledge of facts and circumstances
that the person to be arrested committed it" depended on the particular circumstances of the case. However, we note that the element
of ''personal knowledge of facts or circumstances" under Section S(b ), Rule 113 of the Revised Rules of Criminal Procedure requires
clarification.

The phrase covers facts or, in the alternative, circumstances. According to the Black's Law Dictionary,80"circumstances are attendant
or accompanying facts, events or conditions. " Circumstances may pertain to events or actions within the actual perception, personal
evaluation or observation of the police officer at the scene of the crime. Thus, even though the police officer has not seen someone
actually fleeing, he could still make a warrantless arrest if, based on his personal evaluation of the circumstances at the scene of the
crime, he could determine the existence of probable cause that the person sought to be arrested has committed the crime. However, the
determination of probable cause and the gathering of facts or circumstances should be made immediately after the commission of the
crime in order to comply with the element of immediacy.

In other words, the clincher in the element of ''personal knowledge of facts or circumstances" is the required element of immediacy
within which these facts or circumstances should be gathered. This required time element acts as a safeguard to ensure that the police
officers have gathered the facts or perceived the circumstances within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on facts or circumstances obtained after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time gap from the commission of the crime to the arrest widens, the pieces
of information gathered are prone to become contaminated and subjected to external factors, interpretations and hearsay. On the other
hand, with the element of immediacy imposed under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, the police
officer's determination of probable cause would necessarily be limited to raw or uncontaminated facts or circumstances, gathered as
they were within a very limited period of time. The same provision adds another safeguard with the requirement of probable cause as
the standard for evaluating these facts of circumstances before the police officer could effect a valid warrantless arrest.

In light of the discussion above on the developments of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure and our
jurisprudence on the matter, we hold that the following must be present for a valid warrantless arrest: 1) the crime should have been
just committed; and 2) the arresting officer's exercise of discretion is limited by the standard of probable cause to be determined from
the facts and circumstances within his personal knowledge. The requirement of the existence of probable cause objectifies the
reasonableness of the warrantless arrest for purposes of compliance with the Constitutional mandate against unreasonable arrests.

Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the present petitioners, the question to be
resolved is whether the requirements for a valid warrantless arrest under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure were complied with, namely: 1) has the crime just been committed when they were arrested? 2) did the arresting officer
have personal knowledge of facts and circumstances that the petitioners committed the crime? and 3) based on these facts and
circumstances that the arresting officer possessed at the time of the petitioners' arrest, would a reasonably discreet and prudent person
believe that the attempted murder of Atty. Generoso was committed by the petitioners? We rule in the affirmative.

III. Application of Section S(b), Rule 113 of the Revised Rules

of Criminal Procedure in the present case: there was a
valid warrantless arrest

We deem it necessary to review the records of the CA because it has misapprehended the facts in its decision.81From a review of the
records, we conclude that the police officers had personal knowledge of facts or circumstances upon which they had properly
determined probable cause in effecting a warrantless arrest against the petitioners. We note, however, that the determination of the
facts in the present case is purely limited to the resolution of the issue on the validity of the warrantless arrests of the petitioners.

Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005, the date that the alleged crime was committed, the
petitioners were brought in for investigation at the Batasan Hills Police Station. The police blotter stated that the alleged crime was
committed at 3:15 a.m. on February 20, 2005, along Kasiyahan St., Brgy. Holy Spirit, Quezon City.

The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty. Generoso and the petitioners already inside the
police station, would connote that the arrest took place less than one hour from the time of the occurrence of the crime. Hence, the CA
finding that the arrest took place two (2) hours after the commission of the crime is unfounded.

The arresting officers' personal observation of Atty. Generoso's bruises when they arrived at the scene of the crime is corroborated by
the petitioners' admissions that Atty: Generoso indeed suffered blows from petitioner Macapanas and his brother Joseph
Macapanas,83 although they asserted that they did it in self-defense against Atty. Generoso.

Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate84 that was issued by East Avenue Medical Center on
the same date of the alleged mauling. The medical check-up of Atty. Generoso that was made about 8:10 a.m. on the date of the
incident, showed the following findings: "Contusion Hematoma, Left Frontal Area; Abrasion, T6 area, right midclavicular line
periorbital hematoma, left eye; Abrasion, distal 3rd posterolateral aspect of right forearm; Abrasion, 4th and fifth digit, right hand;
Abrasion on area of ih rib (L ant. Chest wall), tenderness on L peripheral area, no visible abrasion. In addition, the attending
physician, Dr. Eva P. Javier, diagnosed Atty. Generoso of contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.

17
To summarize, the arresting officers went to the scene of the crime upon the complaint of Atty. Generoso of his alleged mauling; the
police officers responded to the scene of the crime less than one (1) hour after the alleged mauling; the alleged crime transpired in a
community where Atty. Generoso and the petitioners reside; Atty. Generoso positively identified the petitioners as those responsible
for his mauling and, notably, the petitioners85and Atty. Generoso86 lived almost in the same neighborhood; more importantly, when
the petitioners were confronted by the arresting officers, they did not deny their participation in the incident with Atty. Generoso,
although they narrated a different version of what transpired.87

With these facts and circumstances that the police officers gathered and which they have personally observed less than one hour from
the time that they have arrived at the scene of the crime until the time of the arrest of the petitioners, we deem it reasonable to
conclude that the police officers had personal knowledge of facts or circumstances justifying the petitioners' warrantless arrests. These
circumstances were well within the police officers' observation, perception and evaluation at the time of the arrest. These
circumstances qualify as the police officers' personal observation, which are within their personal knowledge, prompting them to make
the warrantless arrests.

Similar to the factual antecedents in Jayson,88 the police officers in the present case saw Atty. Generoso in his sorry bloodied state. As
the victim, he positively identified the petitioners as the persons who mauled him; however, instead of fleeing like what happened in
Jayson, the petitioners agreed to go with the police officers.

This is also similar to what happened in People v. Tonog, Jr.89 where Tonog did not flee but voluntarily went with the police officers.
More than this, the petitioners in the present case even admitted to have been involved in the incident with Atty. Generoso, although
they had another version of what transpired.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the courts to consider if the police officers have
complied with the requirements set under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, specifically, the
requirement of immediacy; the police officer's personal knowledge of facts or circumstances; and lastly, the propriety of the
determination of probable cause that the person sought to be arrested committed the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve immediately dispatched the arresting officer,
SP02 Javier, to render personal assistance to the victim.90 This fact alone negates the petitioners' argument that the police officers did
not have personal knowledge that a crime had been committed - the police immediately responded and had personal knowledge that a
crime had been committed.1wphi1

To reiterate, personal knowledge of a crime just committed under the terms of the above-cited provision, does not require actual
presence at the scene while a crime was being committed; it is enough that evidence of the recent commission of the crime is patent
(as in this case) and the police officer has probable cause to believe based on personal knowledge of facts or circumstances, that the
person to be arrested has recently committed the crime.

Considering the circumstances of the stabbing, particularly the locality where it took place, its occasion, the personal circumstances of
the parties, and the immediate on-the-spot investigation that took place, the immediate and warrantless arrests of the perpetrators were
proper. Consequently, the inquest proceeding that the City Prosecutor conducted was appropriate under the circumstances.

IV. The term "invited" in the Affidavit of Arrest is construed to

mean as an authoritative command

After the resolution of the validity of the warrantless arrest, the discussion of the petitioners' second issue is largely academic. 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. An arrest 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.91 Thus,
application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough
that there be an intention on the part of one of the parties to arrest the other and the intent of the other to submit, under the belief and
impression that submission is necessary.92

Notwithstanding the term "invited" in the Affidavit of Arrest, 93 SP02 Javier could not but have the intention of arresting the petitioners
following Atty. Generoso' s account. SP02 Javier did not need to apply violent physical restraint when a simple directive to the
petitioners to follow him to the police station would produce a similar effect. In other words, the application of actual force would
only be an alternative if the petitioners had exhibited resistance.

To be sure, after a crime had just been committed and the attending policemen have acquired personal knowledge of the incidents of
the crime, including the alleged perpetrators, the arrest of the petitioners as the perpetrators pointed to by the victim, was not a mere
random act but was in connection with a particular offense. Furthermore, SP02 Javier had informed the petitioners, at the time of their
arrest, of the charges against them before taking them to Batasan Hills Police Station for investigation. 94

V. The Order denying the motion for preliminary

investigation is valid

In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the petitioners' urgent motion for regular
preliminary investigation for allegedly having been issued in violation of Article VIII, Section 14 of the 1987 Constitution 95 and Rule
16, Section 3 of the Revised Rules of Court.96

The RTC, in its Order dismissing the motion, clearly states that the Court is not persuaded by the evidentiary nature of the allegations
in the said motion of the accused. Aside from lack of clear and convincing proof, the Court, in the exercise of its sound discretion on
the matter, is legally bound to pursue and hereby gives preference to the speedy disposition of the case."
18
We do not see any taint of impropriety or grave abuse of discretion in this Order. The RTC, in resolving the motion, is not required to
state all the facts found in the record of the case. Detailed evidentiary matters, as the RTC decreed, is best reserved for the full-blown
trial of the case, not in the preliminary incidents leading up to the trial.

Additionally, no less than the Constitution itself provides that it is the decision that should state clearly and distinctly the facts and the
law on which it is based. In resolving a motion, the court is only required to state clearly and distinctly the reasons therefor. A contrary
system would only prolong the proceedings, which was precisely what happened to this case. Hence, we uphold the validity of the
RTC's order as it correctly stated the reason for its denial of the petitioners' Urgent Motion for Regular Preliminary Investigation.
WHEREFORE, premises considered, we hereby DENY the petition, and hereby AFFIRM the decision dated January 21, 2008 and the
resolution dated April 17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor of Quezon City is hereby
ORDERED to proceed with the criminal proceedings against the petitioners.

SO ORDERED.

DISSENTING OPINION

LEONEN, J.:

I regret that I cannot bring myself to agree that the warrantless arrest was valid.

To review, the facts as established are as follows:

Both petitioners and respondent are residents of Kasiyahan Street, Barangay Holy Spirit, Quezon City. 1

On February 20, 2005, at around 3:00 to 3:15 a.m., petitioners Joey M. Pestilo.s (Pestilos ), Dwight Macapanas (Macapanas ), Miguel
Gaces (Gaces), Jerry Hernandez (Hernandez), and Ronald Mufioz (Mufioz), and respondent Atty. Moreno Generoso (Atty. Generoso)
were waiting for the water supply on Kasiyahan Street. Pestilos and Macapanas got into an altercation with Atty. Generoso that
involved physical violence. Immediately after the incident, Pestilos and Macapanas went to the barangay hall to seek help from the
local barangay officials.2

At the barangay hall, Pestilos reported the incident and wanted to have it inscribed in the barangay blotter. The barangay tanod
advised them to secure a medical certificate first before Pestilos and Macapanas could register their complaint in the barangay
blotter.3 Pestilos and Macapanas requested the barangay tanod to accompany them on their way back to their residences on Kasiyahan
Street, "to avoid further trouble." 4

At around 5:30 a.m., Pestilos and Macapanas arrived with the barangay tanod on Kasiyahan Street. Bythen, officers from Batasan
Hills Police Station were present. Atty. Generoso pointed to Pestilos and Macapanas as perpetratorsof his alleged mauling.5 The two
began complaining about Atty. Generosos attack against them. The police officers, led by SPO2 Dominador Javier (SPO2 Javier),
brought Pestilos, Macapanas, and Atty. Generoso to the police station. The other petitioners, Gaces, Hernandez, and Muoz, were
brought by Pestilos and Macapanas to act as their witnesses.

Macapanas left the police station for a while to get a medical certificate from the East Avenue Medical Center, as advised by the
barangay tanod earlier.6 Meanwhile, at the police station, Atty. Generoso filed charges against all petitioners (Pestilos, Macapanas,
Gaces, Hernandez, and Muoz) for frustrated murder. 7

Macapanas also filed charges against Atty. Generoso for slight physical injuries.8 The police officers in the Batasan Hills Police
Station rendered reports for both charges. Inaddition to the reports, SPO2 Javier executed an affidavit of arrestwith respect to
petitioners.9

At the Office of the Prosecutor,the prosecutor subjected all the petitioners to inquest, while the complaint against Atty. Generoso was
treated as a case subject topreliminary investigation.10 Two days after the incident, the prosecutor filed an information against
petitioners for attempted murder.11

Before arraignment, petitioners filed an urgent motion for regular preliminary investigation. However, the Regional Trial Court of
Quezon City, Branch 96, denied the motion.12 They filed a motion for reconsideration, but the motion was denied. 13

On appeal via Rule 65, the Court ofAppeals sustained the order of the Regional Trial Court: WHEREFORE, the instant petition for
certiorari is hereby DISMISSEDfor lack of merit.

SO ORDERED.14

The Court of Appeals denied petitioners motion for reconsideration in the resolution dated April 17, 2008. 15 They came to this court
via a petition for review on certiorari. They argue that they are entitled to preliminary investigation. Subjecting them to inquest
proceedings was irregular because they were not properly arrested. Assuming that their decision to go to the police station was an
"arrest," the arrest was invalid because it was not made in compliance with the ruleon warrantless arrests.

I vote that the petition be granted. Petitioners are entitled to a preliminary investigation because the warrantless arrest was not valid.

19
The right of a person to his or her liberties in the form of protections against unreasonable searches and seizures enjoys a high degree
of protection.16 The Constitution only allows for reasonable searches and seizures. As a general rule, courts decide whether there is
probable cause to issue a search warrant or warrant of arrest. In People v. Burgos, 17 this court stated that:

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed.Any
exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by
the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically
provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full
protection.18 (Emphasis supplied).

The limited circumstances for the conduct of reasonable warrantless arrests are enumerated in Rule 113, Section 5 of the Rules of
Court.

SEC. 5. Arrest without warrant; when lawfulA peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(c) When the person to be arrestedis a prisoner who has escaped from a penal establishment or place where he is serving final
judgment or temporarily confined while his case ispending, 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 12, Section 7.

This case does not fall under the first and third exceptions. The question is whether this falls under the special circumstances of
Section 5(b) of Rule 113 of the Rules of Court. The elements of a valid warrantless arrest under Rule113, Section 5(b) are the
following: (1) the offense has just been committed; (2) the arresting officer has personal knowledge of facts orcircumstances; and (3)
these facts and circumstances give riseto probable cause that the person to be arrested has committed the offense.

The first element requires that there are facts leading to a conclusion that an offense has been committed. Being based on objectivity,
the first element requires the occurrence of facts that, when taken together, constitutes the commission of an offense.

If we accepted the version of Atty. Generoso, it appears that he was a victim of an attack from petitioners. The facts that he narrated
may, thus, constitute the possible offenses of physical injuries or even attempted or frustrated homicide or murder. The offense should
be evaluated from the facts and circumstances as it appearedto the person making the warrantless arrest. The element that the offense
had "just been committed" was introduced in the 1985 revision of the Rules of Criminal Procedure. This element must be read in
relation to the general requirement that a warrant of arrest must be procured to ensure a more impartial determination of the existence
of facts and circumstances. This element, however, acknowledges the necessities of law enforcement. At times, the police officer
arrives at the scene of the crime after the crime just happened and there are facts and circumstances such as the sudden flight of a
person or the wielding of a weapon by a person near the incident that reasonably lead the police officer to believe that the person is
the perpetrator. In such cases, to ensure that the right person can be put withinthe jurisdiction of a court, the rules allow a valid
warrantless arrest.

This necessity is wanting in this case. Petitioners themselves, together with a barangay tanod, voluntarily went to the police station.
They did so after they had gone to the barangay hall to report the incident and had their own complaints entered into the barangay
blotter.

There was no urgency to arrest petitioners. Theywere not planning to flee. They voluntarily presented themselves as complainants
against private respondent. For reasons not clear in the record, they were subjected to a warrantless arrest and thento inquest. Private
respondent, on the other hand, was allowed to be a respondent in a preliminary investigation. He was not arrested.

Several cases qualified the time element of "just been committed" to range from three (3) hours 19 to 14 days.20This is not the correct
approach.

In Re Petition for Habeas Corpus of Laurente C. Ilagan21 and Umil v. Ramos,22 cited by the majority, were decided under the dark
days of Martial Law. The dissents in those cases were clarion calls for the protection of our liberties.

Former Chief Justice Claudio Teehankee, in his dissent in In Re Ilagan, was of the opinion that "just been committed" "connotes
immediacy in point of time."23 Former Associate Justice Florenz Regalado24 emphasized the requirement of immediacy:

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have
been dictated by the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the
arresting officer acquiring personal and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if
not assured. The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge.25

20
In the same case, Associate Justice Florentino Feliciano illustrated how a hot pursuit warrantless arrest should be made:

Turning to Section 5 (b), two (2) elements must coincide before a warrantless arrest may be sustained under this subsection: 1) the
offense must have "just been committed" when the arresting officer arrived in the scene; and 2)the officer must have "personal
knowledge" of facts indicating that the person to be arrested has committed the offense. In somewhat different terms, the first
requirement imports that the effects or corpus of the offense which has just been committed are still visible: e.g. a person sprawled on
the ground, dead of a gunshot wound; or a person staggering around bleeding profusely from stab wounds.The arresting officer may
not have seen the actual shooting or stabbing of the victim, and therefore the offense can not be said to have been committed "in [his]
presence." The requirement of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must
have been obtained directly from sense perception by the arresting officer.That requirement would exclude information conveyed by
another person, no matter what his reputation for truth and reliability might be. Thus, where the arresting officer comes upon a person
dead on the streetand sees a person running awaywith a knife from where the victim is sprawled on the ground, he has personal
knowledge of facts which rendered it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer
must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible
effects or corpus of a crime which has "just been committed." 26 (Emphasis supplied)

The second element under Rule 113, Section 5(b) is that the arresting officer has personal knowledge of facts and circumstances.
Personal knowledge is "derived from the [persons] own perception." 27

On the other hand, information not of personal knowledge is hearsay. Hearsay is "evidence not of what the witness knows himself but
of what he has heard from others." 28

The arresting officers must obtain personal knowledge of the facts and circumstances that lead to the conclusion that an offense has
just been committed. They must also perceivefacts and circumstances that would substantiate the probable liability of the person. The
accused is usually identified when he or she is seen fleeing the scene because the act of fleeing suggests the attempt to evade authority.
A person in possession of a weapon could also be perceived as the one liable for an offense.

There must be a reasonable amount offacts short of seeing the entire offense being committed. A collection offacts, on the other hand,
is a set of circumstances. If the arresting officer saw facts and circumstances indicating that an offense has just been committed and
the person is probably liable for that offense, a warrantless arrest is justified under Rule 113, Section 5(b). If the arresting officer saw
the offense being committed, then the warrantless arrest will be justified under Rule 113, Section 5(a), not under subsection (b).

Facts or circumstances relating tothe nature of the offense cannot substitute for personal knowledge of facts or circumstances relating
to the liability of the person who probably committed the offense. One pertains to the object and the other the method of perception.
SPO2 Javier had personal knowledgeof the injuries of private respondent. This is only personal knowledge with respect to the offense,
not yet as to the identity of the perpetrators.

On the other hand, the information obtained by the police officers when private respondent pointed to petitioners as the perpetrators of
the crime was hearsay. Private respondents act of pointing to petitioners communicated that petitioners committed the mauling. It
becomes hearsay on the part of the police officers who did not see petitioners mauling private respondent. The only personal
knowledge obtained by the police officers was that private respondent pointed to petitioners.

According to petitioners, they returned to the crime scene and saw the police officers. They also informed the police officers that
private respondent attacked them. That is another hearsay received by the police officers at the crime scene.

The police officers perceived limited facts while investigating at the crime scene. These limited facts do not provide sufficient bases
for the liability of anyone at the scene. No one was reported holding a weapon allegedly used against private respondent. None of the
petitioners fled at the sight of the police officers.

There were only facts relating to the offense, such as the sight of an injured private respondent. This fact cannot substitute for the
personal knowledge of facts and circumstances relating to the liability of petitioners.

Parenthetically, the police officers also had hearsay knowledge that private respondent was the perpetrator against petitioners. For
reasons not clear in the records, however, the police officers preferred not to arrest him.

The third element requires that these facts and circumstances must lead to the conclusion that there is probable cause to believe that
the person to be arrested committed the offense. Rule 113, Section 5(b) requires that "probable cause" or "actual belief or reasonable
grounds of suspicion" must be supported by personal knowledge of facts or circumstances that, when taken together, builds the
suspicion thatan individual committed the offense.

The plurality in the phrasing suggests that there should be more than one fact or circumstance. In People v. Cogaed,29 we ruled that for
there to be a "genuine reason" to execute a warrantless arrest or search, there should be more than one suspicious circumstance to infer
that there was criminal activity.30

In most cases that found the validity of the warrantless arrest, there was the presence of more than one circumstance that formed part
of the personal knowledge of the police officers.

In People v. Jayson,31 police officers were summoned immediately to the crime scene. They found the victim, and saw the accused
fleeing. These are two facts that show that the offense was committed and that the person arrested was probably responsible because
he attempted to escape.

21
In People v. Tonog,32 there was a murder. Police officers at the crime scene saw the following: the body of the victim and a motorcab
that was driven by Tonog that day. Tonog voluntarily went to the police station, and one of the police officers noticed that he had
blood splatters on his jeans. All three facts and circumstances were observed by the police officers during the arrest, thereby building
the probable cause that Tonog committed the murder.33 On the other hand, this court ruled that there are instances when there is no
personal knowledge of the police officers; hence, there is no valid warrantless arrest.

In People v. Burgos,34 a source informed the police officers that Ruben Burgos was engaged in subversive activities. This court held
that the report was not enough to enact a warrantless arrest under Rule 113, Section 5(b), especially since there were no facts
personally known to the police officers that a crime was committed.

In Posadas v. Ombudsman,35 the National Bureau of Investigation officers arrested two students identified bywitnesses as the
perpetrators of a killing during a fraternity rumble. The arrest was made without a warrant, and this court declared the warrantless
arrest invalid.

Rule 113, Section 5(b) did not apply in People v. Briones 36 where the accused was arrested after one eyewitness had identified him as
the murderer. This court declared that the warrantless arrest was invalid "because the police officer who effected the arrest indubitably
had no personal knowledge of facts indicating that the person to be arrested has committed the crime. It is [the] eyewitness . . . who
had such personal knowledge."37

Jurisprudence often repeats the doctrine summarized in Umil v. Ramos: 38

It has been ruled that "personal knowledge of facts", in arrests without warrant must be based upon probable cause, which means an
actual belief or reasonable ground of suspicion.

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers,the suspicion that the person to
be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers making the arrest. 39 (Citations omitted)

The confusion with this treatment is that it qualifies personal knowledge with probable cause, not the other way around. The rule
states that "probable cause . . . [is] based on personal knowledge of facts and circumstances." 40It does not state personal knowledge of
facts based on probable cause or reasonable suspicion.The import of the text is that reasonable suspicion and probable cause is built by
personal knowledge of facts and circumstances. Personal knowledge is the method of perceiving facts. Probable cause is the
conclusion of all the facts so perceived. Flight of the accused is often a sign that there is probable cause that he or she committed the
offense. When he or she attempts to escape from authorities, the authorities must act immediately because not doing so might
compromise the investigation.

If there is no personal knowledge offacts and circumstances on the part of the police officers, a warrantless arrest under Rule 113,
Section 5(b) will be unreasonable because there is nothing to base probable cause on that the accused committed the offense.

Here, there was no flight of the accused. On the contrary, petitioners returned to the crime scene 41 because they felt that they were the
victims, not the perpetrators.

The police officers were still investigating the matter when petitioners were brought to the police station. The circumstances of the
situation did not call for an exception to the rulerequiring a warrant of arrest. The statement made by private respondent on the identity
of his perpetrators, as communicated to the police, could have been reduced to an affidavit used to support an application for a warrant
of arrest. The statements made by petitioners were other pieces of evidence to be considered for the issuance of a warrant of arrest.

The police officers were not threatened by the immediate flight of the alleged perpetrators who believed that they also have a right to
vindicate since they were cooperating with the police. All facts point to the reasonability of obtaining a warrant ofarrest. There was no
exigency to cause the warrantless arrest of petitioners.

It bears stressing that petitioners went with the police officers in their capacity as complainants against private respondent. They did
not know that they were already being arrested. Totheir mind, the police officers just wanted to continue the investigation at the police
station. This is shown by the police report dated February 20,2005 regarding the complaint of petitioner Macapanas against private
respondent Atty. Generoso. In this report, petitioner Macapanas was the complainant, and private respondent Atty. Generoso was the
accused. To wit:

It is worthy to mentioned [sic] that complainant voluntarily [sic] appeared to this Station wherein he was identified by complainant at
[sic] the one who punched him(,) which also causing [sic] him to be bitten (by) a dog thereat. 42

The existence of two police reportsfor two separate crimes committed during one incident one with petitioners as accused43 and the
other with private respondent as accused44 proves that at the time that petitioners were taken into custody, the police officers were
still uncertain about what happened. This negates the presenceof probable cause, required by Rule 113, Section 5(b).

Probable cause must exist at the time of the warrantless arrest. Otherwise, any form of uncertainty should be resolved through the
exercise of judicial caution.

22
When the police officers becamemore convinced that private respondents version was more believable than petitioners, the police
officers should have applied for a warrant of arrest. SPO2 Javier expedited procedure when he executed an affidavit of arrest. He made
it appear that there was a valid warrantless arrest, instead of applying for a warrant of arrest. This is unacceptable in our Constitution.

Strict standards should be imposed on law enforcement. It is said that "the prosecution can bring the full resources of the state to bear
on winning. Imposing a heavy burden of proof on the prosecution diminishes this advantage." 45

Relaxing our standards in taking individuals under custody enhances the advantage of the prosecution, tothe detriment of the
individual. Compared to the state, the accused does not have the resources to question the legitimacy of an arrest. Some of them do not
even know that they are already being arrested. Many arrested individuals may not even be able to afford lawyers until the public
attorney steps in during custodial investigation or, worse, during arraignment. By then, the accused would have already been deprived
of his or her liberty.

The circumstances of this case requirethe vigilance of this court in protecting the neglected rights of petitioners. Petitioners were just
in their 20s when the altercation occurred. Pestilos was a student, Macapanas and Muoz were unemployed, Gaces was a driver, and
Fernandez was a printing press operator. Petitioners havebeen certified as indigents. 46 They are of limited means. At the time that they
were trying to vindicate their rights at the police station, they did not have counsel.

On the other hand, it is easier for the police officers to be persuaded by private respondent, a member of the bar who is fully aware of
his constitutional rights. The police officers became more inclined to believe his story because he is a lawyer, while petitioners were
all non-lawyers. Petitioners were not expected to know that a detention was an arrest. The affidavit of arrest stated that SPO2 Javier
"informed all the suspects of the charges imputed against themby complainant Atty. Generoso." 47 To an ordinary citizen, they were
just complaints. An invitation is really just an invitation for petitioners. They did not go to the police station because they were being
arrested.

With the absence of a valid warrantless arrest, petitioners are entitled to preliminary investigation. Preliminary investigation is "an
inquiry or a proceeding the purpose of which is 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." 48 The right to preliminary
investigation is statutory in character.49 Being mandated by statute, a preliminary investigation becomes part of the constitutional due
process rights accorded to the accused.50

Under Rule 112, a preliminary investigation is required if an offense has a penalty of at least four (4) years, two (2) months, and one
(1) day. However, under Section 6 of the same rules, a preliminary investigation is no longer necessary if the person accused was
arrested lawfully without a warrant. If there was a valid warrantless arrest under Rule 113, Section 5, inquest proceedings are required.

Based on the Manual for Prosecutors, inquests are conducted by a public prosecutor assigned as an Inquest Officer. An inquest is
conducted only at the police stations or headquarters of the Philippine National Police, unless otherwise directed. 51

Here, petitioners alleged that theywere brought from Batasan Hills Police Station to the Office of the Prosecutor. At the Office of the
Prosecutor, it was decided that petitioners would be subjected to inquest, while respondent would undergo preliminary investigation.
This irregularly conducted inquest aggravates the fact that petitioners were subjected to an inquest despite lack of a valid warrantless
arrest.

Considering that petitioners were not arrested in accordance with the strict guidelines of our Constitution and the Rules of Court,
petitioners' statutory right to preliminary investigation is mandatory.

ACCORDINGLY, the petition should be GRANTED.

23
G.R. Nos. 212140-41 January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

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

DECISION

CARPIO, J.:

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

- Paderanga v. Drilon1

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

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

The Facts

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

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

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

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

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

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

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

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

(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the
Complainants.6

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

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

24
This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules of Court and
Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada]to be
furnished all the filings of the respondents.

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

(a) The complaintshall state the address of the respondent and shall be accompanied by the affidavits of the complainant and
his witnesses, as well as other supporting documents to establish probable cause

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the
respondent shall submit his counter affidavit and that of his witnesses and other supporting documents relied upon for his
defense. The counter affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant.

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

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

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file
reply affidavits within ten (10) days after service of the counter-affidavits.

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

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

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

WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents,
Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless entitled to be furnished a copy of the Reply if
complainant opts to file such pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution9which found probable
cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA No.
3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada
prayed for the issuance of a new resolution dismissing the charges against him. Without filing a Motion for Reconsideration of the
Ombudsmans 27 March 2014 Order denying his Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and
sought to annul and set aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

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

25
On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a Joint Order furnishing Sen.
Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis
Sevidal, and directing him to comment thereon within a non-extendible period of five days fromreceipt of the order.

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

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

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

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

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

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

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

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

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

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

RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estradas resort to a Petition
for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for reconsideration of the 27 March 2014
Order or incorporated the alleged irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also
no violation of Sen. Estradas right to due process because there is no rule which mandates that a respondent such as Sen. Estrada be
furnished with copies of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment. Sen. Estrada insisted that he was denied due
process. Although Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura,
Sevidal, as well as one of Tuasons counter-affidavits, heclaimed that he was not given the following documents:

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

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

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

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

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

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

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

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

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

26
 j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

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

This Courts Ruling

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

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

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

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

Section 3. Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and
his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as
there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public,
each of who must certify thathe personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground
to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at
the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party ora witness. The parties
can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the
expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient
ground to hold the respondent for trial. Section 4. Resolution of investigating prosecutor and its review. If the investigating
prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under
oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant
and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably
guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was
given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman orhis deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.

27
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval
of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the
latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice
reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. From the Rules of Procedure of the Office of the Ombudsman, Administrative Order
No. 7, Rule II: Procedure in Criminal Cases

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

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

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

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

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

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

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

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

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

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on thecomplainant. The complainant may file
reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any,
as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.

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

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

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be
afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where
28
 the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing,
whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on
the witness concerned who shall be required to answer the same in writing and under oath.

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

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

xxxx

Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the
proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration. a) Only one (1) motion for reconsideration or reinvestigation of anapproved order or resolution
shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the proper
deputy ombudsman as the case may be.

xxxx

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

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

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent "shall have
access to the evidence on record," this provision should be construed in relation to Section 4(a) and (b) of the same Rule, as well as to
the Rules of Criminal Procedure. First, Section 4(a) states that "theinvestigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of the complainant, and do
not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of the affidavits and all other
supporting documents, directing the respondent" tosubmit his counter-affidavit. The affidavits referred to in Section 4(b) are the
affidavits mentioned in Section

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

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he respondent shall have the right to
examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense." A
respondents right to examine refers only to "the evidence submitted by the complainant."

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

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Pealoza, who were both employees of the Land
Transportation Office. Pealoza submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted his counter-
29
affidavit in another case before the Ombudsman as it involved the same parties and the same incident. None of the parties appeared
during the preliminary conference. Pealoza waived his right to a formal investigation and was willing to submit the case for
resolution based on the evidence on record. Pealoza also submitted a counter-affidavit of his third witness. The Ombudsman found
Reyes guilty of grave misconduct and dismissed him from the service. On the other hand, Pealoza was found guilty of simple
misconduct and penalized with suspension from office without pay for six months. This Court agreed with the Court of Appeals
finding that Reyes right to due process was indeed violated. This Court remanded the records of the case to the Ombudsman, for two
reasons: (1) Reyes should not have been meted the penalty of dismissal from the service when the evidence was not substantial, and
(2) there was disregard of Reyes right to due process because he was not furnished a copy of the counter-affidavits of Pealoza and of
Pealozas three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits happened in the administrative
proceedings on the merits, which resulted in Reyes dismissal from the service. In Sen. Estradas Petition, the denial of his Request
happened during the preliminary investigation where the only issue is the existence of probable cause for the purpose of determining
whether an information should be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits of his co-
respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative case and a criminal case:

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

It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, and "probable
cause merely implies probability of guilt and should be determined in a summary manner. A preliminary investigation is not a part of
the trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence." 18Thus, the rights of a respondent in a preliminary investigation are limited to those
granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to
engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief" as tothe fact of the commission of a crime and the respondent's probable guilt
thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence; it is for the
presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof. We are in accord with the state prosecutors findings in the case at bar that there exists prima facie evidence of
petitioners involvement in the commission of the crime, it being sufficiently supported by the evidence presented and the facts
obtaining therein.

Likewise devoid of cogency is petitioners argument that the testimonies of Galarion and Hanopol are inadmissible as to him since he
was not granted the opportunity of cross-examination.

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

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

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

30
Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its finding of probable
cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-CC-13-0397 was judicially confirmed by the
Sandiganbayan, when it examined the evidence, found probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June
2014.

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

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

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

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

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

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

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed
to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of
the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. x x x.

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

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

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

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

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in
Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would
justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

31
Considering the low quantum and quality of evidence needed to support a finding of probable cause, wealso hold that the DOJ Panel
did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for
clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand
already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies
probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a
trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to
establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary. 27

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

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are granted by the Constitution;
hence, these rights cannot be taken away by merelegislation. On the other hand, as repeatedly reiterated by this Court, the right to a
preliminary investigation is merely a statutory right,32 not part of the "fundamental and essential requirements" of due process as
prescribed in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation. The constitutional
right of an accused to confront the witnesses against him does not apply in preliminary investigations; nor will the absence of a
preliminary investigation be an infringement of his right to confront the witnesses against him. 33 A preliminary investigation may be
done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidenceneeded in a preliminary
investigation to establish probable cause, or to establish the existence of a prima facie case that would warrant the prosecution of a
case. Ang Tibay refers to "substantial evidence," while the establishment of probable cause needs "only more than bare suspicion, or
less than evidence which would justify . . . conviction." In the United States, from where we borrowed the concept of probable
cause,35 the prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These are not technical; they are the
factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of
proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De Armit, 99 Pa. St.
63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this "means less than evidence which would justify
condemnation" or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339,
348. Since Marshalls time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where "the facts and
circumstances within their [the officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United
States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded
charges of crime. They also seek to give fair leeway for enforcing the law in the communitys protection. Because many situations
which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes
on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.
The rule of probable cause is a practical, non technical conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to
leave law-abiding citizens at the mercy of the officers whim or caprice. 36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is needed to be
established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is sufficient ground to engender
a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for
trial. A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a commitment order, if the
accused has already been arrested, shall be issued and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an offense has just
been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only upon probable
cause in connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the
things to be seized which may be anywhere in the Philippines.

32
In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or probability, of guilt.
Justice Brion, in the recent case of Unilever Philippines, Inc. v. Tan 37 (Unilever), stated:

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

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

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

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

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

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

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right to a preliminary
investigation. To treat them the same will lead toabsurd and disastrous consequences.

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

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

Second. Sen. Estradas present Petition for Certiorari is premature.

33
Justice Velascos dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal prosecution incourt" because there is "a
pending question regarding the Ombudsmans grave abuse of its discretion preceding the finding of a probable cause to indict him."
Restated bluntly, Justice Velascos dissent would like this Court to conclude that the mere filing of the present Petition for Certiorari
questioning the Ombudsmans denial of Sen. Estradas Request should have, by itself, voided all proceedings related to the present
case.

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

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estradas Motion for Reconsideration ofits 28 March
2014 Joint Resolution which found probable cause toindict Sen. Estrada and his corespondents with one count of plunder and 11
counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that "[t]his Office,
in fact, held in abeyance the disposition of motions for reconsideration in this proceeding in light of its grant to Senator Estrada a
period of five days from receipt of the 7 May 2014 Order to formally respond to the above-named respondents claims."

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

A motion for reconsideration allows the public respondent an opportunity to correct its factual and legal errors. Sen. Estrada, however,
failed to present a compelling reason that the present Petition falls under the exceptions41to the general rule that the filing of a motion
for reconsideration is required prior to the filing of a petition for certiorari. This Court has reiterated in numerous decisions that a
motion for reconsideration is mandatory before the filing of a petition for certiorari. 42

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

As we try to follow Justice Velascos insistence, we direct Justice Velasco and those who join him in his dissent to this Courts ruling
in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that "[t]he law can no longer help one who had been given
ample opportunity to be heard but who did not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The Ombudsman found petitioner
Rachel Beatriz Ruivivar administratively liable for discourtesy in the course of her official functions and imposed on her the penalty
of reprimand. Petitioner filed a motion for reconsideration of the decision on the ground that she was not furnished copies of the
affidavits of the private respondents witnesses. The Ombudsman subsequently ordered that petitioner be furnished with copies of the
counter-affidavits of private respondents witnesses, and that petitioner should "file, within ten (10) days from receipt of this Order,
such pleading which she may deem fit under the circumstances." Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter the deprivation of her right to due process or cure the
irregularity in the Ombudsmans decision to penalize her.

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

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

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts, exhaustion of
administrative remedies and due process embody linked and related principles. The "exhaustion" principle applies when the ruling
court or tribunal is not given the opportunity tore-examine its findings and conclusions because of an available opportunity that a party
seeking recourse against the court or the tribunals ruling omitted to take. Under the concept of "due process," on the other hand, a
violation occurs when a court or tribunal rules against a party without giving him orher the opportunity to be heard. Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while due process is considered from the point of view
of the litigating party against whom a ruling was made. The commonality they share is in the same"opportunity" that underlies both. In
the context of the present case, the available opportunity to consider and appreciate the petitioners counter-statement offacts was
denied the Ombudsman; hence, the petitioner is barred from seeking recourse at the CA because the ground she would invoke was not
considered at all at the Ombudsman level. At the same time, the petitioner who had the same opportunity to rebut the belatedly-
furnished affidavits of the private respondents witnesses was not denied and cannot now claim denial of due process because she
did not take advantage of the opportunity opened to her at the Ombudsman level.

34
The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the private respondents
failure to furnish her copies of the affidavits of witnesses) and on questions relating to the appreciation of the evidence on record. The
Ombudsman acted on this motion by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private
respondents witnesses, together with the "directive to file, within ten (10) days from receipt of this Order, such pleading which she
may deem fit under the circumstances."

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

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

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

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

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

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

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

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

Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and should be summarily dismissed.

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

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-13-0313 and OMB-CC-13-
0397, raising as sole issuethe finding of probable cause in the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman. 49 (Emphasis supplied)

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

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

35
 xxxx

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

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

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

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

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

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

i. Alexis G. Sevidals Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanans Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figuras Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuasons Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventuras Counter-Affidavit dated 06 March 2014; and

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

xxxx

II

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

xxxx

2.17 x x x x

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

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

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans 4 June 2014 Joint Order which denied his motion
for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint Order stated that
the Ombudsman "held in abeyance the disposition of the motions for reconsideration in this proceeding in light of its grant to [Sen.

36
Estrada] a period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond to the abovenamed co-respondents
claims."

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

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia. 52 To determine whether a party
violated the rule against forum shopping, the most important factor to ask is whether the elements of litis pendentia are present, or
whether a final judgment in one case will amount to res judicatain another.53 Undergirding the principle of litis pendentia is the theory
that a party isnot allowed to vex another more than once regarding the same subject matter and for the same cause of action. This
theory is founded on the public policy that the same matter should not be the subject of controversy in court more than once in order
that possible conflicting judgments may be avoided, for the sake of the stability in the rights and status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that in the usual course and because of
its nature and purpose is not covered by the rule on forum shopping. The exception from the forum shopping rule, however, is true
only where a petition for certiorari is properly or regularly invoked in the usual course; the exception does not apply when the relief
sought, through a petition for certiorari, is still pending with or has as yet to be decided by the respondent court, tribunal or body
exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of the order assailed via a petition for certiorari under Rule
65, as in the present case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised Rules of Court which
provides that the availability of a remedy in the ordinary course of law precludes the filing of a petition for certiorari; under this rule,
the petitions dismissal is the necessary consequence if recourse to Rule 65 is prematurely taken.

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

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

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and documents, fully complied with
Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of Procedure of the
Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the Rules of Procedure of
the Office of the Ombudsman require the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and affidavits of his supporting witnesses. Neither of these Rules require the investigating officer to furnish the
respondent with copies of the affidavits of his co-respondents. The right of the respondent is only "to examine the evidence submitted
by the complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has
unequivocally ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and,
where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine." Moreover, Section 4 (a, b and c) of Rule II of the Ombudsmans Rule of
Procedure, read together, only require the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses.1wphi1 There is no law or rule requiring the investigating officer to furnish the respondent
with copies of the affidavits of his co-respondents.

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

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

37
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be impartial and cannot be the
fact-finder, investigator, and hearing officer atthe same time. In preliminary investigations, the same public officer may be the
investigator and hearing officer at the same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in
GSIS, does not apply to preliminary investigations. To now declare that the guidelines in Ang Tibay, as amplified in GSIS, are
fundamental and essential requirements in preliminary investigations will render all past and present preliminary investigations invalid
for violation of constitutional due process. This will mean remanding for reinvestigation all criminal cases now pending in all courts
throughout the country. No preliminary investigation can proceeduntil a new law designates a public officer, outside of the
prosecution service, to determine probable cause. Moreover, those serving sentences by final judgment would have to be released from
prison because their conviction violated constitutional due process. Sen. Estrada did not file a Motion for Reconsideration of the 27
March 2014 Order in OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition. He should have filed a
Motion for R econsideration, in the same manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his
motion to suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law against the acts of the public respondent.56 The plain, speedy
and adequate remedy expressly provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen.
Estrada's failure to file a Motion for Reconsideration renders this Petition premature.

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

SO ORDERED.

DISSENTING OPINION

BRION, J.:

I dissent to reflect my objections to the ponencia 's conclusions and reasoning; it is particularly mistaken on a very critical point - the
nature and extent of the respondent's due process rights during preliminary investigation. This Dissent registers as well other points
that I believe should be discussed and addressed.

The petition's main issue is whether the denial via the Ombudsman's March 27, 2014 Order of petitioner Senator Jinggoy Ejercito
Estrada's plea embodied in his Request constitutes, under the premises, grave abuse of discretion." This is and should be the proper
approach in resolving this case.

Factual Antecedents

I recite hereunder the major incidents of the case to provide the full flavor and a fuller understanding of what transpired in this case.

On the complaint filed by the National Bureau of Investigation (NB!) and Atty. Levi to Baligod, the Ombudsman conducted a
preliminary investigation against Estrada, et. al.1 for violation of Republic Act (RA) No. 7080 (Anti-Plunder Law). The investigation
proceeding was docketed as OMB-C-C-13-0313.

On a subsequent complaint filed by the Field Investigation Office of the Ombudsman (FIO), 2 the Ombudsman conducted another
preliminary investigation against Estrada for violation of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act). The preliminary
investigation proceeding was docketed as OMB-C-C-13-0397.

Estrada received his copy of each of the two complaints, in OMBC-C-13-0313 and OMB-C-C-13-0397, on November 25, 2013 and
December 3, 2013, respectively. In compliance with the Ombudsmans directive, Estrada filed his Counter-Affidavits on January 8
and 16, 2014.3

Estradas co-respondents, on the other hand, filed their respective counter-affidavits between December 9, 2013 and March 14, 2014,
specifically:

1. Marivic V. Jover Two (2) Counter-Affidavits dated December 9, 2013;

2. Victor Roman Cojamco Cacal Counter-Affidavit dated December 11, 2013 (to the FIO Complaint) and Counter-
Affidavit dated January 22, 2014 (to the NBI Complaint);

3. Rosario Nuez, Lalaine Paule and Marilou Bare Joint CounterAffidavit dated December 13, 2013;

4. Mario L. Relampagos Counter-Affidavit dated December 13, 2013;

5. Gondelina G. Amata Counter-Affidavit dated December 26, 2013 (to the FIO Complaint) and Counter-Affidavit dated
January 20, 2014 (to the NBI Complaint);

6. Francisco B. Figura Counter-Affidavit dated January 8, 2014;

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 7. Alexis Sevidal Counter-Affidavit dated January 15, 2014 (to the NBI Complaint) and Counter-Affidavit dated February
24, 2014 (to the FIO Complaint);

8. Maria Niez P. Guaizo Counter-Affidavit dated January 28, 2014;

9. Sofia D. Cruz Counter-Affidavit dated January 31, 2014;

10. Allan Javellana Two (2) Counter-Affidavits dated February 6, 2014;

11. Evelyn Sucgang Counter-Affidavit dated February 11, 2014;

12. Dennis L. Cunanan Two (2) Counter-Affidavits dated February 20, 2014;

13. Ruby Tuason Two (2) Counter-Affidavits both dated February 21, 2014;

14. Gregoria Buenaventura Counter-Affidavit dated March 6, 2014;

15. Rhodora Bulatad Mendoza Counter-Affidavit dated March 6, 2014; and

16. Ma. Julie A. Villaralvo-Johnson Two (2) Counter-Affidavits dated March 14, 2014.

Meanwhile, Estrada received information that his co-respondents affidavits and submissions made reference to his purported
participation in the so-called "PDAF Scam." Thus, he filed a motion his March 20, 2014 Request to fully allow him to refutethe
allegations against him, if needed. Estrada particularly asked for the following documents (requested documents):

a. Counter-affidavit of Ruby Tuason;

b. Counter-affidavit of Dennis L. Cunanan;

c. Counter-Affidavit of Gondelina G. Amata;

d. Counter-Affidavit of Mario L. Relampagos;

e. Consolidated Reply of the NBI,if one had been filed; and

f. Affidavit/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the
Complainants.

The Ombudsmans March 27, 2014 Order ("Denial of Request Order")

The Ombudsman denied Estradas Request on the reasoning that his rights as a respondent in the preliminary investigation depend on
the rights granted him by law. The Ombudsman pointed out that the law, the Rules of Court and Administrative Order No. 7 (Rules of
Procedure of the Ombudsman) only require the respondents to furnish their counter-affidavits to the complaint. The Ombudsman
concluded that Estrada is not entitled, as a matter of right, to copies of his corespondents counter-affidavits.

On March 28, 2014, the Ombudsman issued its Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 findingprobable cause
to indict Estrada, et. al.with one (1) count of Plunder and eleven (11) counts of violation of Section 3(e)of R.A. No. 3019. For
convenience, this Ombudsman action is referred to as the "Probable Cause Resolution."

Significantly, Estrada received copy of the Ombudsmans March 27, 2014 Denial of Request Order and the March 28, 2014 Probable
Cause Resolution on April 1, 2014.

On April 7, 2014, he moved for the reconsideration of the March 28, 2014 Probable Cause Resolution.

On May 7, 2014, Estrada filed the present petition for certiorari, to question, among others, the Ombudsmans March 27, 2014 Denial
of Request Order. Also on the sameday, May 7, 2014, the Ombudsman issued a Joint Order furnishing Estrada with copies of someof
the requested counter-affidavits.

On May 15, 2014, the Ombudsman denied Estradas motion to suspend the proceedings pending the Courts resolution of his present
petition.

On June 4, 2014, the Ombudsman denied Estradas motion for reconsideration of the March 28, 2014 Probable Cause Resolution.

On June 6, 2014,4 the Ombudsman filed before the Sandiganbayan the Informations against Estrada, et. al., charging them with
violation of the Plunder and Anti-Graft laws. The cases are docketed as SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-
0266.

Estradas Petition
39
Estrada assails, on grounds of grave abuse of discretion and violation of his right to dueprocess under the Constitution, the following
issuances of the Ombudsman: (1) the March 27, 2014 Denial of Request Order; and (2) the Resolution of March 28, 2014 finding
probable cause against him.

He prays that the Court declares: (1) that he has been denied due process as a consequence of the March 27, 2014 Denial of Request
Order; and (2) the nullity of the March 27, 2014 Denial of Request Order, as well as the proceedings in OMB-C-C-13-0313 and OMB-
C-C-13-0397 (subsequent to and affected by the issuance of the March 27, 2014 Denial of Request Order). He likewise asks the Court
for a temporary restraining order (TRO) and/or preliminary injunction to restrain the Ombudsman from further proceeding in the case.

Estrada argues, in the main, that the Ombudsman denied him due process of law when the latter refused to furnish him with copies of
the requested documents. Particularly, he contends that the Ombudsmans refusal:

First, violated Section 4(c), RuleII of the Ombudsman Rules of Procedure (or the right to "have access to the evidence on record") and
Section 3(a) and (b), Rule 112 of the Rules of Court (or the right to "examine the evidence submitted by the complainant which he
may not have been furnished"); and

Second, contravened established Court rulings and the Constitutions due process clause. He points out that the requested documents
touch on the charges against him; to deny him access to these documents, as the Ombudsman did, is to deny him the full measure of
his due process rights.

The Ombudsmans Comment

The Ombudsman, in defense, contends that:

First, Estradas certiorari petition is procedurally infirm as he has a plain, speedy, and adequate remedy i.e.,the motion for
reconsideration he filed addressing the Ombudsmans March 28, 2014 Probable Cause Resolution;

Second, Estrada violated the rule against forum shopping as the arguments raised in this petition are essentially the same as those he
presented in his motion for reconsideration of the March 28, 2014 Probable Cause Resolution.

Third and last, it had, in fact, already furnished Estrada with copies of the requested documents on May 7, 2014.

My Conclusion and Reasons

Preliminary Considerations

Estrada essentially challenges the Ombudsmans March 27, 2014 Orderdenying his Request to be furnished copies of his co-
respondents affidavits and other documents, and posits that the Ombudsmans order should be declared null and void.He comes to
this Court via this petition for certiorari under Rule 65 of the Rules of Court.

In a Rule 65 petition, the scope of the Courts review is limited to the question: whether the order by the tribunal, board or officer
exercising judicial or quasi-judicial functions was rendered without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Grave abuse of discretion is defined as such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or
[an] exercise of power in an arbitrary and despotic manner by reason of passion or hostility, or an exercise of judgment so patent and
gross as to amount to an evasionof a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act in manner not in
contemplation of law."5

Under the simplified terms of Estradas petition that I summed up above, at the core of the present controversy is clearly the regularity
viewed from the context of accepted due process standards of the Ombudsmans conduct when it acted as a tribunal exercising
quasi judicial functions in the preliminary investigation of OMB-C-C-13-0313 and OMB-C-C-13-0397.

Estradas petition must fail if the Ombudsman complied with the basic requirements of due process and the prevailing rules and
jurisprudence on preliminary investigations. The Court must then recognize the Ombudsman's acts to be proper and within its
jurisdiction.

Estradas petition, however, must succeed, based on his arguments and within the limitations of his prayer, if the Ombudsman indeed
defied these rules and existing jurisprudence. The grant of the petition based on the asserted violations in effect recognizesthat, in
acting as it did in OMB-C-C-13-0313 and OMB-C-C-13-0397, the Ombudsman gravely abused its discretion and thereby acted
inexcess of its jurisdiction.

A. On the procedural objections

1. Propriety of a Rule 65 petition in

assailing the Ombudsmans March
27, 2014 Denial of Request Order

The circumstances obtaining in this case, in my view, support the finding that the certiorari petition is the most appropriate remedy
available to Estrada. Contrary to the Ombudsmans position, a motion for reconsideration addressing the Ombudsmans March 27,

40
2014 Denial of Request Order would and could not have been the plain, speedy and adequate remedy available to Estrada. Neither
could the Ombudsmans disposition of Estradas then pending motion for reconsideration of the March 28, 2014 Probable Cause
Resolution, have remedied the due process denial caused by the March 27, 2014 Denial of Request Order.

I support these conclusions with the following reasons.

First, the sequence of the events from the Ombudsmans March 27, 2014 Denial of Request Order up to the filing of this petition
did not and could not have afforded Estrada sufficient opportunity to timely seek a plain, speedy and adequate remedy other than his
present recourse to this Court for an extraordinary writ of certiorari.

For clarity, I draw attention to the sequence of events that transpired that rendered any other plain, speedy and adequate remedy,
unavailable:

Estrada filed with the Ombudsman his Request for copies of his co-respondents affidavits and submissions on March 20,
2014;
the Ombudsman denied his Request thru the March 27, 2014 Denial of Request Order;
on March 28, 2014, the Ombudsman issued its Probable Cause Resolution;
Estrada received a copy of the March 27, 2014 Denial of Request Order only on April 1, 2014;
also on April 1, 2014, Estrada received his copy of the March 28, 2014 ProbableCause Resolution;
on April 7, 2014, Estrada moved for the reconsideration of the Ombudsmans March 28, 2014 Probable Cause
Resolution;
on May 7, 2014, Estrada filed the present petition to question the Denial of Request Order of March 27, 2014;
also on May 7, 2014, the Ombudsman furnished Estrada, albeit partially, with copy of the requested documents; and
on June 6, 2014, Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 against Estrada, among
others, were filed with the Sandiganbayan.

A critical point in this sequence of events is the Request that Estrada filed on March 20, 2014. Estrada filed this Request after learning
from media reports that some of his co-respondents made reference in their respective counter-affidavits to his purported participation
in the "PDAF scam."

Very obviously, Estrada considered these documents vital (as I likewise find them to be), given their strong evidentiary weight the
Ombudsman gave these documents. Thus, copies of these documents should likewise have been given to him to allow him to
adequately prepare his defense against the charges laid.

Under these developments, Estrada plainly filed his Request to contest the allegations, documents or evidence adverse to him that he
was not aware of. His move finds support under Section 4, Rule II of the Ombudsman Rules in relation with Section 3, Rule 112 of the
Rules of Court, which provide that the respondent shall "have access to the evidence on record."

The effect on Estradas cause of these submissions is glaring as they were the evidence largely used to support the Ombudsmans
probable cause finding.

To reiterate, the series of events shows that Estradas purpose in making his Requestwas effectively negated when the Ombudsman,
on March 28, 2014, found probable cause to indict him based largely on evidence that had not been furnished to him.

This violation prior to and independently of the probable cause finding occurred when the Ombudsman refused to grant him access
to his requested documents and proceeded to find probable cause based largely on these requested documents. Worse, Estrada did not
even know of the denial of his Requestat the time the probable cause finding was made and thus could not have contested it through a
timely motion for reconsideration.

A motion for reconsideration addressing the March 27, 2014 Denial of Request Order, even if granted, could not have changed the fact
that the finding of probable cause on March 28,2014 was largely one-sided, given that it partly relied on the allegations in the
requested documents that were not available to Estrada.

More importantly, a motion for reconsideration could not have erased the violation of his due process right caused by the finding of
probable cause without hearing his defense against his co-respondents allegations.

Second, a motion for reconsideration, under the attendant circumstances was not an appropriate remedy: it would have been useless
anyway as Estrada had already been deprived of his due process right and the most urgent relief was called for.

While it is true that, as a rule, a motion for reconsideration must as an indispensable condition be filed before an aggrieved party
may resort to the extra ordinary writ of certiorari, this established rule is not without exception.

Jurisprudence has recognized instances when the filing of a petition for certiorari is proper notwithstanding the failure to file a motion
for reconsideration. These instances include the situation when a motion for reconsideration would be useless, and when the petitioner
had been deprived of his due process rights and relief was urgently needed. 6

Likewise clear from the series of events in this case is the conclusion that a motion for reconsideration from the March 27, 2014
Denial of Request Order would have been useless anyway given that the Ombudsman already found probable cause to indict him on
March 28, 2014 or four (4) days before Estrada even learned of the Ombudsmans denial of his Request. Thus, even if he had filed a

41
motion for reconsideration from the March 27, 2014 Denial of Request Order and awaited its resolution by the Ombudsman, the
Ombudsmans finding of probable cause would still have stood and Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to
SB-14-CRM-0266 would still have been filed before the Sandiganbayan.

Section 7(b), Rule II of the Ombudsmans Rules provides that the filing of a motion for reconsideration to the finding of probable
cause cannot bar the filing of the Information; a motion for reconsideration to an order denying the lesser request for documents
cannot but have the same effect.

More importantly, the violations ofdue process rights in this case committed through the March 27, 2014 denial of Estradas Request
and the Ombudsmans subsequent finding of probable cause necessarily result in the Ombudsmans failure to hear and fully
appreciate Estradas defenses or possible defenses against his co-respondents allegations. This kind of situation should support the
need for immediate resort to the remedy of a writ of certiorarias a motion for reconsideration could not have prevented the filing of
Information in court the consequence of the violation of Estradas due process rights.

2. Concurrence of the present Rule 65

petition and Estradas motion for
reconsideration to the March 28,
2014 Probable Cause Resolution
before the Ombudsman

I likewise find that Estrada did not commit forum shopping when he filed the present petition. Forum shopping exists when the
elements of litis pendentia are present. To determine whether prohibited forum shopping transpired, the existence of litis pendentia is
imperative, i.e., an action must already be pending when a second action is filed. This pendency requires the identity of parties in both
actions; identity, likewise of the rights asserted and the reliefs prayed for, as the reliefs are founded on the same facts; and the resulting
judgment, regardless of which party is successful, would amount to res judicata in the other case. 7

From this perspective, Estradas motion for reconsideration before the Ombudsman did not and could not have led to the existence of
litis pendentia that would give rise to prohibited forum shopping. For one, the parties involved in Estradas motion for reconsideration
(to the Ombudsmans March 28, 2014 Probable Cause Resolution) are different from those in the present petition, i.e., Estrada and the
NBI and FIO in the former, and Estrada and the Ombudsman in the latter.

Additionally, the rights asserted and the reliefs prayed for are likewise entirely different. In the motion for reconsideration, what
Estrada assailed was the Ombudsmans finding of probable cause; he essentially asked the latter to set aside these findings for lack of
factual and legal bases. In the present petition, what Estrada assails is the validity of the Ombudsmans denial of his Request and
essentially asks the Court to "set aside the March 27, 2014 Order and all proceedings subsequent to and affected by [this] Order" for
violation of his due process rights guaranteed under the Constitution.

Finally, any decision that the Ombudsman might arrive at (or had in fact arrived at in its June 4, 2014 Order) in the motion for
reconsideration would not have the effect of res judicata on the present petition.

A resolution of Estradas motion for reconsideration goes into the probable cause findings of the Ombudsman or on the existence (or
absence) of such facts and circumstances sufficient to engender a well founded belief that Estrada committed the charges against him
and thus should be held for trial. A resolution of the present petition, in contrast, goes into the validity, viewed from the accepted due
process standards, of the Ombudsmans denial of Estradas Request. Based on these reasons, I find that Estradas motion for
reconsideration did not and could not have constituted res judicata to the present petition as to preclude the Court from resolving the
issues to their full conclusion.

3. Effect of the Ombudsmans May 7,

2014 Order on Estradas present
petition assailing the March 27,
2014 Denial of Request Order

In its May 7, 2014 Order, the Ombudsman furnished Estrada with copies of the counter-affidavits of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidal. Based on this move, the Ombudsman now argues that the May 7, 2014 Order
rendered moot Estradas petition as this Order, in effect, already achieved what Estrada sought in his Request.

The Ombudsmans argument on this point would have been correct had it furnished, via the May 7, 2014 Order, Estrada with copies
of allthe documents subject of his Request. An issue or a case becomes moot and academic when it ceases to present a justiciable
controversy so that a determination thereof would bewithout practical use and value. In such cases, there is no actual substantial relief
to which the petitioner would be entitled and which would be negated by the dismissal of the petition. 8 The furnishing of all the
requested documents would have achieved precisely what Estrada sought for in this petition.

The facts, however, glaringly reveal the flaw in this argument the Ombudsmans compliance was only partial. As the events showed,
the Ombudsman furnished Estrada with copies of the affidavits of only seven of his co-respondents. The Ombudsman has yet to
furnish Estrada with copies of the affidavits of the other nine co-respondents that, viewed from the degree of their relevance to
Estradas cause, would have been indispensable as these formed part of the records from where the Ombudsman drew the conclusion
that probable cause existed.

Thus, by these facts alone, the May 7, 2014 Order did not and could not have rendered moot Estradas petition. The copies of the
affidavits of only seven of his co-respondents did not satisfy Estradas Request.

42
Apart from this reason, I find that the May 7, 2014 Order indeed could not have rendered Estradas petition moot in view of the
Ombudsmans March 28, 2014 Resolution finding probable cause against Estrada.

At the time the Ombudsman partially complied with Estradas Request, Estradas due process rights sought to be protected by this
Request (which I shall separately discuss below) had already been violated. Thus, a compliance with the Request, whether partially or
fully, could and can no longer erase the adverse consequences of its initial denial.

B. On the petitions merits

I find that the Ombudsman clearly gravely abused its discretion and thereby acted:

(1) without or in excess of jurisdiction in issuing the March 27, 2014 Denial of Request Order; and

(2) irregularly, subsequent to its March 27, 2014 Denial of Request Order, in proceeding in OMB-C-C-13-0313 and OMB-C-
C-13-0397.

To support these conclusions, let me first discuss some of the underlying precepts touching on the issues at hand.

1. Preliminary Investigation: Nature

and Purpose

A preliminary investigation is an inquiry or proceeding to determine whether sufficient ground exists to engender a well-founded
belief that a crime has been committed, that the respondent is probably guilty of this crime, and should be held for trial. 9

The process has been put in place before any trial can take place "to secure the innocent against hasty, malicious and oppressive
prosecution and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial,
and also to protect the State from useless and expensive prosecutions." 10

Thus, a preliminary investigation is not simply a process plucked out of the blue to be part of the criminal justice process; it reflects a
policy with specific purposes and objectives, all of which are relevant to the orderly working of society and should thus be closely
followed.

Significantly, no constitutional provision expressly mentions or defines a preliminary investigation. In this sense, it is not one of those
specifically guaranteed fundamental rights under the Bill of Rights. 11 Rather than an express constitutional origin, preliminary
investigation traces its roots to statute.12 But this status is not reason enough to simply look at the Rules of Court and from its bare
wording literally decide what the process means.

To give the process full substance and meaning, the rules establishing preliminary investigation as a process must be read in the
context in which they operate. These rules cannot and should not be viewed and treated in isolation and dissociated from the whole
criminal justice process, particularly, from the body of constitutional rights expressly guaranteed to those perceived, suspected or
formally accused to have run afoul of societys criminal laws.

Note that under the Constitution, from the police custodial investigation to the criminal trial, are rights guaranteed to the individual
against State action as the State is the active party in these trials; it stands for the People of the Philippines and prosecutes the case,
i.e., seeks the filing of the criminal Information and the conviction of the accused, in behalf of the People and against the individual.

A necessary starting point in considering how preliminary investigation and its set of rights are to be viewed is the mother of rights
under the Bill of Rights the Due Process Clause under Section 1:"[n]o person shall be deprived of life, liberty or property without
due process of law." This guarantee, no less, lies atthe bedrock of preliminary investigation process as life, liberty and property all
stand to be affected by State action in the criminal justice process.

Interestingly, under the Constitution, actual and active protection starts at the earliest stage when an individual the specific concern
of the Bill of Rights and whom this part of the Constitution particularly secures against State action becomes potentially exposed to
harm from an all-powerful State. The Constitution describes the trigger point of this protection to be at the "investigation for the
commission of an offense."

Jurisprudence holds that this point occurs when the process ceases to be purely a police investigation and crosses over to the custodial
investigation stage, i.e.,when the investigation becomes accusatory.13 At that point, Section 12 of the Bill of Rights is triggered and the
individual under investigation becomes entitled to remain silent and to have competent and independent counsel.

Section 14 further provides for additional guarantees, among them, its own due process clause relating tocriminal offenses; the
presumption of innocence; the right to counsel; right to information on the nature and cause of accusation; the right to speedy,
impartial and public trial, including the right to meet the witnesses face to face, and the right to secure the attendance of witnesses and
the production of documents.

In between the police custodial investigation (or its substitute proceeding) and the trial itself, is the intermediate preliminary
investigation stage where the proceedings are already accusatory and the individual must show that the State claim that probable cause
exists has no basis. This stage, to be sure, isnot spelled out in the Constitution and both the process and the guarantees are provided
only by statutes.14 Nevertheless, the protection afforded if indeed the individual is to be afforded protection from State action
should be real so that its denial is no less an infringement of the constitutional due process clause. 15
43
This consequence must necessarily follow because the due process rightduring preliminary investigation is substantive, not merely
formal or technical, and is a component part of the due process rights in the criminal justice system16 that begins at the accusatory
police investigation level. To be sure, criminal justice rights cannot be substantive at the custodial investigation stage, only to be less
than this at preliminary investigation, and then return to its substantive character when criminal trial starts.

Additionally, the rights during preliminary investigation are not merely implied rights because preliminary investigation is not
mentioned in the Constitution. They are very real rights, granted and guaranteed as they are by law.

In short, to deny preliminary investigation rights to a person undergoing this process would deprive him of the full measure of his
right to due process.17 This was the case when due process started under Englands Magna Cartain 1215, 18 and should be true now:
"no man shall be taken or imprisonedbut by the lawful judgment of his peers or by the law of the land [per legem terrae]."

In Torralba v. Lim,19 the Court, reiterating Go v. Court of Appeals,20 declared that "[w]hile 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.
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."

In Uy v. Office of the Ombudsman,21 the Court held that a preliminary investigation while still essentially an administrative
proceeding where the investigating officer exercises preliminary investigation powers that are quasi-judicial in nature is subject to
the requirements of both substantive and procedural due process that exists in court proceedings. While the rigorous standards of a
criminal trial is not required, it cannot be denied that "[s]ufficient proof of the guilt of the accused must be adduced so that when the
case is tried, the trial court may not be bound as a matter of law to order an acquittal." 22

2. Governing rules on the conduct of

preliminary investigation
proceedings

At present, the right to preliminary investigation is provided, in the main, by Rule 112 of the Rules of Court,and, in particular, as
applied to proceedings conducted by the Ombudsman, by Section 4, Rule II of the Ombudsman Rules in relation withR.A. No. 6770
(the Ombudsman Law).23 The provisions of the Rules of Court pertinent to the issue in the present case are Section 3(b) and (c), of
Rule 11224 which provide:

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to
continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense. If the evidence isvoluminous, the complainant may be required to specify
those which he intends to present against the respondent, and these shall be made available for examination or copying by the
respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the
expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent
shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by
him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

On the other hand, Section 4(a) and (b), Rule II of the Rules of Procedure of the Office of the Ombudsman (Ombudsman Rules)
provide:

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

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

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and
other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10)
days after service of the counter-affidavits.

3. Estradas Request viewed in the

context of a preliminary investigation
proceeding

The ponencia advances the view that Estradas Requestis not supported by Rule 112 of the Rules of Court, nor by Section 4, Rule II of
the Ombudsman Rules.

44
I disagree with this view as the ponencia forgets the most fundamental rule in construing provisions of statutes and administrative
issuances that all laws and rules must necessarily include within their terms the higher and overriding terms of the Philippine
Constitution.

Among the terms of our Constitution deemed included within the terms of Rule 112 of the Rules of Court and Rule II of the
Ombudsman Rules is the Bill of Rights a significant and perhaps a most unique part of our Constitution and its due process clauses
namely: Section 1(the general provision that guarantees life, liberty and property of individuals against arbitrary State action) and
Section 14(1)on criminal due process.25

I note that the public prosecutors power to conduct a preliminary investigation is quasi-judicial in nature. To be precise, a public
prosecutor conducting preliminary investigation exercises discretion in deciding the factual issues presented and in applying the law to
the given facts, all for the purpose of determining whether probable cause exists that a crime has been committed and the respondent
probably committed it. This exercise of power to determine facts and to apply the law using discretion outside of the courts is
undoubtedly quasi-judicial in character.

The Court explained in Spouses Dacudao, et al. v. Secretary of Justice 26 that this quasi-judicial characterization of the public
prosecutors power to conduct preliminary investigation is true only to the extent that the public prosecutor, like a quasi-judicial body,
is an officer of the executive department exercising powers akin tothose of a court of law. In Paderanga v. Drilon, et al., 27 the Court,
while admitting the inquisitorial nature of the preliminary investigation, also ruled that the institution of a criminal action depends on
the sound discretion of the fiscal; he has the quasi-judicial discretion to determine whether or not a criminal case should be filed in
court. Under this quasi-judicial characterization (albeit a limited one as above explained), the due process standards that at the very
least should be considered in the public prosecutors conduct of a preliminary investigation are those that this Court first articulated in
Ang Tibay v. Court of Industrial Relations.28

The basic due process safeguards in administrative proceedings established in Ang Tibay are: (1) the respondents right to a hearing,
which includes the right to present ones case and submit supporting evidence; (2) the tribunal must consider the evidence presented;
(3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the
evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision,
the tribunal must have acted on its own conclusions of the law and the facts of the controversy and must not have simply accepted the
views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for itand the
various issues involved.29

In light of Ang Tibay, the requirements in providing the evidence and materials that the respondent shall respond to in a preliminary
investigation cannot simply be the complaint and affidavit, to the exclusion of the other materials such as the co-respondents
counteraffidavits if these latter statements have been used in considering the presence or absence of probable cause.

In the present case, the relevant and material facts are not disputed.1wphi1 Estradas co-respondents,namely, Tuason, Cunanan,
Figura, Buenaventura and Sevidal have all been mentioned in the Order finding probable cause to charge Estrada with Plunder and
violations of the Anti-Graft laws before the Sandiganbayan. Hence, Estrada should have been allowed to respond to these
submissions.

The Court must likewise consider that:

First, despite the timely filed Request, the Ombudsman refused to furnish Estrada copies, among others, of the counter-affidavits of
his co-respondents.

Second, immediately after it issued the March 27, 2014 Order that denied Estradas Request(or on March 28, 2014), the Ombudsman
issued the Joint Resolution finding probable cause to indict him for violation of the Anti-Graft Law and the Plunder Law.
Significantly, the Ombudsman, to a considerable extent,based its findings of probable cause on the affidavits of his co-respondents.
Third, belatedly realizing perhaps the flaw in its refusal to grant Estradas Requestand the accompanying due process implications, the
Ombudsman eventually acceded to the Request on May 7, 2014. Compliance, however, with Estradas Request, as I pointed out
above, was only partial, as the Ombudsman did not furnish Estrada with copies of the affidavits of the other nine co-respondents from
where the conclusion that probable cause existed, was drawn. In short, it still failed to fully furnish Estrada with copy of allthe
requested documents.

Last, even after it granted albeit partially, Estradas Request, the Ombudsman also did not give Estrada sufficient opportunity to rebut
the allegations against him before the Ombudsman actually decided to indict him. Note that, as I likewise discussed above, it gave
Estrada only a five-day non-extendible period within which to reply or commenton the counter-affidavits of his co-respondents.

The reasonable opportunity to controvert evidence and ventilate ones cause in a proceeding as an essential part of due process
requires full knowledgeof the relevant and material facts and evidence specific to the proceeding and of which he has been sufficiently
informed of.30 A respondent (or accused) cannot be expected to respond to collateral allegations or assertions made by his co-
respondents, which he was unaware of.31

Still following Ang Tibay, the decision or resolution in the preliminary investigation proceeding must be rendered: on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties affected; and in such manner that respondents
would know the reasons for itand the various issues involved. Only by confining the administrative tribunal to the evidence disclosed
to the parties, can the latter be protected in their right to know and meetthe case against them. 32

In the light of the due process requirement of preliminary investigation, full knowledgeof and reasonable opportunityto controvert
material evidence (such as the counter-affidavits of his co-respondents) should have been given Estrada at the preliminary
45
investigation proceedings prior to the Ombudsman Order finding probable cause. For, without the counter-affidavits, Estrada had
nothing to controvert since the burden of evidence lies with the Ombudsman who asserts that a probable cause exists.

As the preliminary investigation is the crucial sieve in the criminal justice system that spells for Estrada the difference of months or
years of trial and possible jail term, on the one hand (given the non-bailable nature of and the statutory penalty for the crime of
plunder), and peace of mind and liberty, on the other hand, the Ombudsman should have, at the very least, complied with these
essential due process requisites.

The Ombudsmans refusal an act that effectively denied Estrada the full measure of his right to due process in a manner completely
outside the contemplation of law tainted the preliminary investigation proceedings with grave abuse of discretion that effectively
nullifies them. This conclusion is unavoidable asin the hierarchy of rights, the Bill of Rights and its supporting statutes take
precedence over the right of the State to prosecute; when weighed against each other, the scales of justice tilt towards the former. 33

For the grave abuse of discretion committed by the Ombudsman in the manner by which it proceeded in OMB-C-C-13-0313 and
OMB-C-C-13-0397, I vote to partially grant his petition. Some final points: Consequence of the grave irregularity in the preliminary
investigation

I submit the following discussions and observations on the effect of the grave irregularity in the Ombudsmans conduct of the
preliminary investigation on the complaints filed against Estrada. I consider it important to continue to reflect and stress these points if
only to clarify any confusion, on the effector consequence of a finding of irregularity in the preliminary investigation on the
Information already pending before the Sandiganbayan aswell as on the warrant issued for Estradas arrest, that may have surfaced in
the Courts deliberations on this case.

The grave irregularity in the preliminary

investigation, effectively amounting to its
absence, does not affect the
Sandiganbayans jurisdiction over the
criminal case against Estrada

1. The absence of a preliminary

investigation does not affect the
validity of the Information already
filed

As has also been mentioned,the conduct of preliminary investigation is governed generally byRule 112 of the Rules of Court, and Rule
II of Administrative Order No. 7or the Ombudsman Rules. In terms of particular rules relevant tothe present case, these are Section 3
of Rule 11234 and Section 4 of Rule II.35

The preliminary investigation process, as provided under the above-cited sources may be summarized as follows: first, a verified
complaint or affidavit is filed before the proper investigating officer; second, the investigating officer shall issue an order, attaching to
it a copy of the affidavits and other supporting documents, and directing the respondent to submit within ten (10)days from his receipt,
his counter affidavits and controverting evidence with proof of service to the complainant; third,the complainant may then file reply-
affidavits within ten (10) days from thereon; fourth, the investigating officer may conduct clarificatory hearing should there be any
matter that, in his discretion, needs to be clarified, and where the parties may be present but without the right to confront the witness
being questioned; and fifth, upon the termination of the preliminary investigation and the investigating officer finds probable cause, he
shall prepare the Information and, subject to the required approval and certification, file it before the proper court; otherwise, subject
to the required approval, he shall dismiss the complaint.

The filing of the Information in court initiates the criminal action. The court acquires jurisdiction and the accompanying authority to
hear, control and decide the case up to its full disposition. After an Information is filed, the exercise of discretion and authority of the
investigating officer over the criminal complaint ends; he loses control and discretion regarding its disposition. Should the
investigating officer find the need tore-investigate the case so that the objectives of a preliminary investigation may be served, he may
do so, provided he first secures the permission of the court, following the rule that the court now has control and disposition of the
case.36 Should a reinvestigation be allowed,the investigating officer, after the reinvestigation and consistent with the courts
jurisdiction over the case, must submit his findings and recommendation to the court for the courts disposition.

Thus runs the relationship betweenthe court and the investigating officer or prosecutor, viewed from the vantage point of the filing of
Information in court after the preliminary investigator finds probable cause to lay a charge.

In the seminal case of Crespo v. Mogul,37 the Court laid out in detail the extent and scope of the power and duties of the fiscals or
prosecutors as they conduct the preliminary investigation, and of the court once it acquires jurisdiction over the criminal case through
the filing of the Information in court. The court explained:

It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the
direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may
not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in
his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal
prosecution under the direction and control of the fiscalis to prevent malicious or unfounded prosecution by private persons. It cannot
be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the
duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime

46
committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they
become convinced that the evidence adduced is not sufficient to establish a prima facie case.

It is through the conduct of a preliminary investigation, that the fiscal determines the existence of a prima facie case that would
warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is
not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an
information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order
the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and
control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the casefor insufficiency of evidence has authority to do
so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal
should the re-investigation show eitherthat the defendant is innocent or that his guilt may not be established beyond reasonable doubt.
In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or
the defendant, those of the fiscal's should normally prevail. On the other hand, neither an injunction, preliminary or in final nor a writ
of prohibition may be issued by the Courts to restrain a criminalprosecution except in the extreme case where it is necessary for the
courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and
vindictive manner.

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the
provincial or city fiscal or the chief state prosecutor as the case maybe and it may be elevated for review to the Secretary of Justice
who has the power to affirm, modify or reverse the action oropinion of the fiscal. Consequently the Secretary of Justice may direct that
a motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court.

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case,
which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of
the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court
thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the information in the proper court.In turn, as above stated, the filing of said
information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation
of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of
the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only
qualification is that the action of the Court must not impair the substantial rights of the accused, or the right of the People to due
process of law. [Emphasis supplied]

Mindful of these considerations, anorder for the dismissal of an Information already filed in court as in Estradas case would be
legally wrong as such move misappreciates the nature, purpose and scope of a preliminary investigation proceeding vis-a-visthe
nature, purpose and scope of the proceedings in court after the filing of the Information.

As early as the 1961 case of People v. Casiano,38 the Court declared that the absence of a preliminary investigation does not affect the
courts jurisdiction over the case, nor does it impair the validity of the Information or otherwise render it defective. This has been the
settled rulein this jurisdiction: once an Information or complaint is filed in court, any disposition of the case with respect to its
dismissal or the conviction or acquittal of the accused, rests with the sound discretion of the court. 39

In the 1982 case of People v. Gomez,40 the Court reiterated the ruling that the absence of a preliminary investigation does not affect
the courts jurisdiction over the case, nor does it impair the validity of the Information or otherwise render it defective. In this case, the
Court set aside the trial courts order dismissing the criminal case against the accused Gomez that was based essentially on the
irregularity in the preliminary investigations.

The Court repeated the Casiano ruling inDoromal v. Sandiganbayan,41 People v. Abejuela,42 Liang v. People,43and Villaflor v.
Vivar,44 to name a few.45 In Torralba v. Sandiganbayan,46 the Court added that the absence of preliminary investigation does not
obliterate the proceedings already undertaken before the court.

Likewise in Doromal, the Court pointed out that the absence of the preliminary investigation is not a ground to quash the complaint or
Information.47

Section 3, Rule 117 of the Rules of Court enumerates the grounds in quashing an Information, as follows:

Section 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged donot constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

47
 (e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

(g) That the criminal action orliability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed
or otherwise terminated without his express consent.

As the Court pointedly noted in Villaflor,48 nowhere in Section 3 is the "lack of preliminary investigation" mentioned as a ground for a
motion to quash.

2. Neither will the absence of a

preliminary investigation affect the
validity of an issued arrest warrant

As the absence of preliminary investigation does not affect the courts jurisdiction over the case, so also does this irregularity not
affect the proceedings already undertaken before the court, nor affect the validity of any warrant that the court may have issued for the
arrest of the accused.

A warrant of arrest is a legal process issued by competent authority, directing the arrest of a person or persons upon grounds stated
therein.49 The issuance of an arrest warrant is governed primarily, by Section 2, Article III of the Constitution, 50 and secondarily, by
Section 6, Rule 112 of the Rules of Court.

Under Section 6, Rule 112 of the Rules of Court, the trial court judge may issue a warrant of arrest within ten (10) days from the filing
of the Information upon a finding of probable cause that the accused should be placed under immediate custody in order not to
frustrate the ends of justice. Notably, the issuance of an arrest warrant and the preliminary investigation both require the prior
determination of probable cause; the probable cause determination in these two proceedings, however, differs from one another.

In Conjuanco, Jr. v. Sandiganbayan,51 citing Ho v. People,52 the Court summarized the distinctions between the determination of
probable cause to merit the issuanceof a warrant of arrest, and the determination of probable cause in a preliminary investigation
through this discussion:

First, x x x the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge.
Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the
prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should beissued against the accused, i.e.,
whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both
should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to
justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutors report will support his own
conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide
independently. Hence, he must have supporting evidence, other than the prosecutors bare report, upon which to legally sustain his
own findings on the existence (or nonexistence) of a probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of
the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the
latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on
hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the completeor entirerecords 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 anaccused. What is required, rather, is that the judge must have
sufficientsupporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of
stenographic notes, if any) upon which to make his independent judgment or, at the veryleast, 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. (Emphasis supplied)

To sum up these distinctions:

First, the determination of probable cause for purposes of an arrest warrant is judicial, performed by the judge to ascertain whether the
accused should be placed under the courts custody; the determination of probable cause as basis for the filing of the Information in
court is executive, performed by the investigating officer toascertain whether or not a criminal case must be filed in court against those
whom he believes committed the crime.

48
Second, the former (the probable cause needed for a warrant of arrest) refers to "such facts and circumstances that would lead a
reasonably discreet and prudent man to believe that an offense has been committed by the person to be arrested";53 the latter (the
probable cause to support the filing of the Information) refers to such facts as are sufficient to engender a well founded belief that a
crime has been committed and that the respondent is probably guilty thereof and should be held for trial.

Third, the prosecutor and the judge act independently of one another in their consideration of evidence commonly before them. One
reason for this independence is their differing objectives. Another is the differing nature of the discretion they exercise, one being
judicial and the other executive, with each being governed by their respective standards.

Since the Sandiganbayan already has jurisdiction and control of the present case, the case before it inevitably cannot be affected
without its consent, except only by a causethat absolutely nullifies the proceedings before it. As I explained above, this nullification
could not have transpired inthe present case.

3. The "radical relief," i.e., dismissal

of the Information already pending
before the Sandiganbayan, as an
exception to the rule that preserves
the courts jurisdiction despite the
grave irregularity in the
preliminary investigation, does not
apply to this case

I am not unaware that the Court, in the past, has not hesitated to grant the "radical relief" of dismissing the Information or the criminal
case already filed in court when a grave irregularity in the conduct of the preliminary investigation exists, i.e.,when there is violation
of the accuseds right to due process. The present situation, however, does not warrant the grant of the "radical relief" in the way
grants were made in the past.

My review of the cases where the Court granted this "radical relief" tells me that this approach has been reserved for special
circumstances and situations where the violation of the accuseds constitutional rights extended beyond the lack of due process that
transpired in the present case. In other words, while I find the Ombudsmans conduct of the preliminary investigation proceedings
gravely irregular, to the point of affecting Estradas right to due process in a manner completely outside the contemplation of law,
such grave irregularity, by itself, does not sufficiently justify a "radical relief" approach.

In Duterte v. Sandiganbayan,54 the Court dismissed the criminal case, for violation of the Anti-Graft Law, against petitioners Rodrigo
R. Duterte and Benjamin C. De Guzman after finding that the Ombudsman, through its Graft Investigator, violated not only the
petitioners right to due process but also their right to speedy disposition of cases.

The Court pointed out that the Ombudsman completely disregarded the preliminary investigation procedure under Sections 2 and 4,
Rule II of the Ombudsman Rules, thus, violating the petitioners due process rights. As well, the Ombudsman unduly and
unreasonably delayed the termination of the irregularly conducted preliminary investigation, thus, infringing the petitioners right to
the speedy disposition of their cases. In addition to these constitutional rights violations, the Court likewise found no probable cause to
hold the petitioners liablefor the charge.

In Tatad v. Sandiganbayan,55 the Court dismissed the Informations, for violation of the Anti-Graft Law, filed against petitioner
Francisco S. Tatad.

As in Duterte, the Court found that the Tanodbayan not only completely departed from the preliminary investigation procedures, as
provided under its Rules; it also unreasonably delayed the resolution of the preliminary investigation. Thus, as in Duterte, the
Tanodbayans acts in the case violated the petitioners right to due processand to the speedy disposition of their cases.More than these,
the Court observed that political motivations obviously propelled the criminal prosecutions against the petitioner, i.e., the complaint
came out only after the petitioner had "a falling out with President Marcos;"instead of requiring the petitioner to file counter-affidavits
and controverting evidence, the Tanodbayan referred the complaint to the Presidential Security Command for the fact-finding
investigation and report.

In Salonga v. Pao,56 the Court, dismissed the certiorari petition filed by Jovito Salonga on the ground of mootness, but nevertheless
declared the Information filed against the latter invalid. The Court reasoned that the respondent-investigating judge absolutely failed to
establish prima facie Salongas guilt for the crime charged; and that the respondents blatantly disregarded his constitutional right to be
informed, during the arrest, of the charges against him, and of his right to counsel.

In Mead v. Argel,57 the Court ordered the respondent Judge Manuel A. Argel to dismiss on jurisdictional grounds the criminal cases
for violation of R.A. No. 3931 filed against petitioner Donald Mead. Impliedly, the Court dismissed the case because of the
irregularity in the preliminary investigation that proceeded from the lower courts lack of jurisdiction.

The Court pointed out that under R.A. No. 3931, a prior determination by the National Water and Air Pollution Control Commission
of the existence of "pollution" is required before any criminal case for violation of its provisions may be filed in court. The
Commission also has the exclusive authority to prosecute pollution violations. No prior determination by the Commission, however,
was ever made, and the prosecution was undertaken by the Provincial Fiscal, not by the Commission. In addition, the Court noted that
the Information accused the petitioner of multiple offenses in contravention of the law.

In People v. Zulueta,58 the Court affirmed the Court of Appeals decision annulling the order of the Regional Trial Court that admitted
the amended Information in the criminal case filed against respondent Jose C. Zulueta. The Court explained that the amendment to the
49
Information that was filed after the respondent had already pleaded to the charge was substantial; it set forth a different manner of
committing the felony with which the respondent was charged. To the Court, the amendment infringed on the respondents right to be
fully apprised of the charges against him.

Lastly, in Zaldivar v. Sandiganbayan,59 the Court dismissed the criminal cases filed by the Tanodbayan against petitioner Enrique A.
Zaldivar on the ground that these cases were filed by the Tanodbayan without legal and constitutional authority.

The Tanodbayan in this cited case issued its finding of probable cause against Zaldivar on February 5, 1987, filed the original
Informations on March 3,1987, and the amended Informations on June 4, 1987. The Court pointed out that"under the 1987
Constitution which took effect on February 2, 1987, itis only the Ombudsman, not the Tanodbayan who has authority to file cases with
the Sandiganbayan." In other words, the Information was filed by an officer without any authority and was thus patently void.

Significantly, in all of the above cases, the Court dismissed the criminal cases/information against the accused not onlybecause of the
grave irregularity amounting to the complete absence of preliminary investigation and resulting in the violation of the accuseds due
process rights. More importantly, a dismissal was ordered because of the presence of the other clearly valid and legal grounds or
compelling factors that, together with other constitutional rights violations, justified the dismissal of the criminal case/information.

These clearly valid and legal grounds or compelling factors that the Court found present in the above cited cases may be summarized
into three:

One, the cases that involved other constitutional rights violations, i.e., unreasonable delay in the conduct and termination of the
preliminary investigation resulting in the violation of the right to speedy disposition of cases; and refusal of the arresting officers to
inform the accused of the charges and to allow him access to his counselin violation of his right to information and to counsel during
an arrest.

Two, the cases that involved grounds to quash the information, i.e., substantial amendment to the Information subsequent to the
accuseds arraignment; multiple charges in the Information; and absolute lack of legal and Constitutional authority of the public
officer that filed the information before the lower court or the Sandiganbayan.

Three, those that involved other clearly compelling and justifiable grounds, i.e., the absence of probable cause as found by the Court;
and obvious political motivations that actively played and propelled the institution of the criminal prosecution against the accused.

Compared with these cases, I find that Estradas situation does not involve any clearly valid and legal grounds or compelling factors
other than the grave irregularity that affected his right to due process in the preliminary investigation. As this Court made clear in
Duterte and Tatad, the grant of the "radical relief"requires a particular regard for the facts and circumstances peculiar to each case.

The effect of a finding of grave

irregularity in the preliminary
investigation in this case: the proper
disposition of Estradas petition

In the instances where the preliminary investigation suffers defects that are not absolutely irremediable in terms of their effects on the
State and the individual, I believe that the proper course of action to take is to: (1) suspend the proceedings before the lower court; and
(2) remand the case to the investigating officerand require the holding of a proper preliminary investigation.

This is the fair middle ground that will protect the interest of the State and the individual. This is the fair solution that will address the
irregularity at the Ombudsman level without doing violence to the jurisdiction that the trial court has already acquired. This was the
course of action that the Court took in Doromal, Torralba, and Abejuela cited above.

Parenthetically, this course of action is proper when viewed from the objectives of a preliminary investigation. This procedure may
save the accused from the rigors and hazards of a prolonged trial if, on preliminary investigation review, no Information should have
been filed in the first place. The State may likewise be saved from spending its scarce time and resources if, in the end, there may be
no case to speak of, on which a conviction can be secured.

In Yusop v. Sandiganbayan,60 the Court, after reversing the resolution of the Office of the Ombudsman for Mindanao recommending
the prosecution of petitioner Alvarez A. Yusop, ordered the Ombudsman to conduct the preliminary investigation and suspended the
trial on the merits of the criminal case against Yusop.

In this case, the Ombudsman agreed with the Court that Yusop was indeed deprived of his right to preliminary investigation. Yet the
Court disagreed with Yusop that the case should be dismissed for lack of preliminary investigation. The Court emphasized that first,
"nowhere in the Revised Rules of Criminal Procedure, or even the old Rules, is there any mention that this lack is a ground for a
motion to quash;" and, second, "responsibility for the absence of a preliminary investigation does not go to the jurisdiction of the
court but merely tothe regularity of the proceedings."

Thus, as applied to the present Estrada case, I submit that the proper course to take is to:

(1) remand the case to the Ombudsman for the conduct of another preliminary investigation with dispatch, this time
furnishing Estrada first with copies of all the requested documents and giving him a reasonable time to submit his counter-
affidavits, comment and controverting evidence; and

50
 (2) order the Sandiganbayan to suspend the proceedings in Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to
SB-14-CRM-0266, but this suspension shall not, and should not, affect the arrest warrant that the Sandiganbayan has acted
upon.

In sum, I vote to PARTIALLY GRANT the petition.

DISSENTING OPINION

VELASCO, JR., J.:

The majority has decided to dismiss the petition for certiorari under Rule 65 of the Rules of Court filed by Sen. Jinggoy Ejercito
Estrada assailing and seeking to annul the Office of the Ombudsman's Order dated March 27, 2014 in OMB-C-C-13-0313 and entitled
"National Bureau of Investigation and Atty. Levito Baligod v. Jose 'Jinggoy' P. Ejercito Estrada, et al."

I cannot find myself agreeing with my distinguished colleagues and so register my dissent.

The Antecedents

In OMB-C-C-13-0313, a preliminary investigation conducted on the complaint filed by the National Bureau of Investigation (NBI)
and Atty. Levito Baligod (Atty. Baligod), petitioner Sen. Jinggoy Ejercito Estrada (Sen. Estrada), along with several others, was
charged with Plunder. Similarly, in OMB-C-C-13-0397, petitioner was charged with the offenses of Plunder and violation of Republic
Act No. (RA) 3019, or the Anti-Graft and Corrupt Practices Act,1in the complaint filed by the Field Investigation Office-Office of the
Ombudsman (OMB-FIO). Both preliminary investigations pertain to the alleged anomalous scheme behind the implementation of
several government projects funded from the Priority Development Assistance Fund (PDAF) of several members of the legislature.

In compliance with the Ombudsmans Orders, Sen. Estrada submitted, as required, a Counter-Affidavit dated January 8, 2014 to the
NBI complaint, and a Counter-Affidavit dated January 16, 2014 in response to the OMBFIO complaint.

In the meantime, Sen. Estradas co-respondents named in the adverted complaints filed their respective counter-affidavits, to wit:

1) Ruby Tuason (Tuason) Two (2) Counter-Affidavits both dated February 21, 2014;

2) Gondelina Amata (Amata) Counter-Affidavit dated December 26, 2013 to the OMB-FIO Complaint and Counter-
Affidavit dated January 20, 2014 to the NBI Complaint;

3) Gregoria Buenaventura (Buenaventura) Counter-Affidavit dated March 6, 2014;

4) Alexis Sevidal (Sevidal) Counter-Affidavit dated January 15, 2014 to the NBI Complaint and Counter-Affidavit dated
February 24, 2014 to the OMB-FIO Complaint;

5) Sofia D. Cruz (Cruz) Counter-Affidavit dated January 31, 2014;

6) Evelyn Sucgang (Sucgang) Counter-Affidavit dated February 11, 2014;

7) Alan Javellana (Javellana) Two (2) Counter-Affidavits dated February 6, 2014;

8) Victor Roman Cojamco Cacal (Cacal) Counter-Affidavit dated December 11, 2013 to the OMB-FIO Complaint and
Counter-Affidavit dated January 22, 2014 to the NBI Complaint;

9) Ma. Julie A. Villaralvo-Johnson (Johnson) Two (2) Counter-Affidavits dated March 14, 2014;

10) Rhodora Bulatad Mendoza (Mendoza) Counter-Affidavit dated March 6, 2014;

11) Maria Ninez P. Guaizo (Guaizo) Counter-Affidavit dated January 28, 2014;

12) Dennis L. Cunanan (Cunanan) Two (2) Counter-Affidavits dated February 20, 2014;

13) Marivic V. Jover (Jover) Two (2) Counter-Affidavits dated December 9, 2013;

14) Francisco B. Figura (Figura) Counter-Affidavit dated January 8, 2014;

15) Rosario Nuez (Nuez), Lalaine Paule (Paule) and Marilou Bare (Bare) Joint Counter-Affidavit dated December 13,
2013; and

16) Mario L. Relampagos (Relampagos) Counter-Affidavit dated December 13, 2013.

Alleging that media reports suggested that his co-respondents and several witnesses made reference in their respective affidavits to his
purported participation in the so-called "PDAF scam," Sen. Estrada then filed in OMB-C-C-13-0313 a Request to be Furnished with
51
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filingsdated March 20, 2014
(Request) so that he may be able to fully refute the allegations against him, if he finds the need to do so. Specifically, Sen. Estrada
requested tobe furnished with copies of the following:

a) Affidavit of Ruby Tuason;

b) Affidavit of Dennis L. Cunanan;

c) Counter-Affidavit of Gondelina G. Amata;

d) Counter-Affidavit of Mario L. Relampagos;

e) Consolidated Reply of the NBI, if one had been filed; and

f) Affidavit/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the
Complainants.

In the assailed Order dated March 27, 2014, the Office of the Ombudsman denied Sen. Estradas Request for the stated reason that his
rights as a respondent in the preliminary investigations depend on the rights granted him by law, and that the Rules of Court and
Administrative Order (AO) No. 7, or the Rules of Procedure of the Office of the Ombudsman, only require respondents to furnish their
counter-affidavits to the complainant, and not to their co-respondents. Hence, the Ombudsman concluded that Sen. Estrada is not
entitled, as a matter of right, to copies of the affidavits of his co-respondents.

The next day, March 28, 2014,the Ombudsman issued a Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 finding
probable cause to indict Sen. Estrada with one (1) count of Plunder and eleven (11) counts of violation of Section 3(e) ofRA 3019.
Sen. Estrada would allege that the Ombudsman used as basis for its Joint Resolution the following documents and papers that were not
furnished to him:

1) Sevidals Counter-Affidavits dated January 15 and February 24, 2014;

2) Cunanans Counter-Affidavits both dated February 20, 2014;

3) Figuras Counter-Affidavit dated January 8, 2014;

4) Tuasons Affidavits both dated February 21, 2014;

5) Buenaventuras Counter-Affidavit dated March 6, 2014; and 6) Philippine Daily Inquirer Online Edition news article
entitled "Benhur Luy upstages Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio, published on May 6,
2014.

Sen. Estrada received both the March 27, 2014 Order and March 28, 2014 Joint Resolution on April 1, 2014.

On April 7, 2014, Sen. Estrada interposed a Motion for Reconsideration seeking the reversal of the adverted Joint Resolution finding
probable cause against him.

On May 7, 2014, Sen. Estrada filed with this Court a petition for certiorari assailing the March 27, 2014 Order of the Ombudsman and
praying in the main that this Court render judgment declaring (a) that he has been denied due process as a consequence of the issuance
of the March 27, 2014 Order, and (b) that the March 27, 2014 Order, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-
13-0397 subsequent to and affected by the issuance of the challenged Order, are null and void. Sen. Estrada also prayed for the
issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction to enjoin the Office of the Ombudsman from
conducting any further proceedings in OMB-C-C-13-0313 and OMBC-C-13-0397 until his petition is resolved by the Court. In a
Motion dated June 27, 2014, Sen. Estrada moved for the conversion of his application for the issuance of a TRO and/or Writ of
Preliminary Injunction into that for the issuance of a Status Quo Ante Order and return the parties to the last peaceable uncontested
status which preceded the present controversy or immediately after the issuance of the Order dated March 27, 2014.

On even date, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Order dated May 7, 2014 furnishing
petitioner with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura, and Sevidal, and directing him
to comment thereon within a non-extendible period of five (5) days from receipt of said Order. Records do not show whether or not
petitioner filed a comment on the said counter-affidavits.

Sen. Estrada claims in his petition that he was denied due process of law when the Ombudsman refused to furnish him with copies of
the affidavits of his co-respondents. He posits in fine that, consequent to the Ombudsmans refusal, he was not afforded sufficient
opportunity to answer the charges against him contrary to the Rules of Court, the Rules of Procedure of the Ombudsman, and several
rulings of this Court applying the due process clause in administrative cases.

Traversing petitioners above posture, respondents aver in their respective comments 2 to the first petition that Sen. Estrada was in fact
furnished with the documents he requested per the May 7, 2014 Joint Order of the Ombudsman. Further, respondents contend that the
present petition for certiorari filed by Sen. Estrada is procedurally infirm as he has a plain, speedy and adequate remedythe motion
for reconsideration he filed to question the March 28, 2014 Joint Resolution of the Ombudsman. As a corollary point, the respondents

52
add thatSen. Estradas petition violates the rule against forum shopping, Sen. Estrada having presented the same arguments in his
motion for reconsideration of the March 28, 2014 Joint Resolution filed with the Ombudsman.

Parenthetically, following his receipt of a copy of the Office of the Ombudsmans Joint Order dated June 4, 2014 denying his Motion
for Reconsideration (of the Joint Resolution dated March 28, 2014), Sen. Estrada filed another petition for certiorari before this Court,
docketed as G.R. No. 212761-62.

The Issue

The main issue in the petition at bar centers on whether the denial via the Ombudsmans Order of March 27, 2014 of petitioners plea
embodied in his Request constitutes, under the premises, grave abuse of discretion. 3

The Majoritys Decision

The ponencia of Justice Carpio deniesthe petition on the following grounds:

1) There is supposedly no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-
affidavits of his co-respondents;

2) Sen. Estradas present recourse is allegedly premature; and

3) Sen. Estradas petition purportedly constitutes forum shopping that should be summarily dismissed.

My Dissent

I do not agree with the conclusions reached by the majority for basic reasons to be discussed shortly. But first, a consideration of the
relevant procedural concerns raised by the respondents and sustained by the ponencia.

Petitioners motion for reconsideration

against the Joint Resolution is not a plain,

speedy, and adequate remedy.

Under Section 1, Rule 65 of the Rules of Court, a petition for certiorari is only available if "there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary courseof law." In the instant case, Sen. Estrada admits to not filing a motion for reconsideration
against the assailed March 27, 2014 Order, but claims that he had no chance to do so as the Order was almost simultaneously
servedwith the March 28, 2014 probable cause finding Joint Resolution. Respondents, on the other hand, counter that the bare fact that
Sen. Estrada filed a motion for reconsideration of the March 28, 2014 Joint Resolution shows that a "plain, speedy, and adequate
remedy" was available to him. Sen. Estrada cannot, therefore, avail of the extraordinary remedy of certiorari, so respondents argue.

I cannot acquiesce with respondents assertion that the motion for reconsideration to the Joint Resolution finding probable cause to
indict petitioner is, vis--vis the denial Order of March 27, 2014, equivalent to the "plain, speedy, and adequate remedy" under Rule
65. This Court has defined such remedy as "[one] which (would) equally (be) beneficial, speedy and sufficient not merely a remedy
which atsome time in the future will bring about a revival of the judgment xxx complained of in the certiorari proceeding, but a
remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or
tribunal concerned."4This in turn could only mean that only such remedy that can enjoin the immediate enforceability of the assailed
order can preclude the availability of the remedy under Rule 65 of the Rules of Court. Notably, Section 7(b) of the Rules of Procedure
of the Office of Ombudsman is categorical that even a motion for reconsideration to an issuance finding probable cause cannot bar the
filing of the information:

Section 7. Motion for Reconsideration xxx xxx xxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Courton the
basis of the finding of probable cause in the resolution subject of the motion.5

Hence, Sen. Estrada may very well be subjected to the rigors of a criminal prosecution in court even if there is a pending question
regarding the Ombudsmans grave abuse of its discretion preceding the finding of a probable cause to indict him. His motion for
reconsideration to the Joint Resolution is clearly not the "plain, speedy, and adequate remedy in the ordinary course of law" that can
bar a Rule 65 recourse to question the propriety of the Ombudsmans refusal to furnish him copies of the affidavits of his co-
respondents. Otherwise stated, Sen. Estradas present recourse is not premature.

The concurrence of the present petition

and the motion for reconsideration filed
with the Ombudsman does not amount to
forum shopping.

53
The majority, however, maintains that petitioners filing of the present petition while his motion for reconsideration to the joint
resolution was pending, constitutes a violation of the rule against forum shopping. The majority maintains that Sen. Estradas motion
for reconsideration before the Office of the Ombudsman supposedly contained the same arguments he raised in the petition at bar.

There is a violation of the rule against forum shopping when the requisites for the existence of litis pendentia are present. 6 Thus, there
is forum shopping when the following requisites concur: (1) identity of parties in both actions; (2) identity of rights asserted and
reliefs prayed for, the reliefs being founded on the same facts; and (3) any judgment that may be rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the other case.7 I submit that there is no subsistence of these
elements in the present case, as the majority posits.

As to the first requisite, it is obvious that the Office of the Ombudsman, the main respondent in this petition, is not a party in the case
where the motion for reconsideration was filed by Sen. Estrada. The required identity of parties is, therefore, not present.

The role of the Office of the Ombudsman, as a respondent in this certiorari proceeding, is not only relevant in the determination of the
existence of the first requisite. It is also indicative of the absence of the second requisite.

In his petition for certiorari, Sen. Estrada bewails the alleged grave abuse of discretion of the Office of Ombudsman in denying his
request to be furnished with copies of the affidavits of his co-respondents. Hence, petitioner prays that the denying Order and all
proceedings subsequent to the issuance of the Order be considered null and void. On the other hand, the motion for reconsideration
thus interposed with the Office of Ombudsman by Sen. Estrada contends that the formererred in finding probable cause to indict him
for plunder and violation of RA 3019, as the evidence against him does not support such finding. He further prayed in his motion for
reconsideration the reversal of the Ombudsmans finding of probable cause. Clearly, there is no identity of rights asserted and reliefs
prayed between the petition before the Court and the motion for reconsideration filed before the Office of the Ombudsman. The
second requisite of litis pendentia does not exist.

The difference in the reliefs prayed for in the petition at bar and the motion for reconsideration filed with the Office of the
Ombudsman argues against the presence of the third requisite. For a denial of petitioners motion for reconsideration by the
Ombudsman would not affect the resolution of the present petition. Similarly, a favorable resolution of the present controversy would
not dictate the Ombudsman to rule one way or the other in the determination of probable cause to indict petitioner for plunder or
violation of RA 3019. As the certiorari proceedings before this Court is exclusively concerned with the Ombudsmans grave abuse of
discretion in denying the petitioner his constitutional right to due process, a definitive ruling herein would not amount to res judicata
that would preclude a finding of probable cause in the preliminary investigation, ifthat be the case. On a similar note, the resolution of
the motion for reconsideration does not bar the present petition. Obviously, the third requisite is likewise absent.

The petition is not mooted by the May 7, 2014 Order.

It is, however, argued that the present recourse has been rendered moot by the Ombudsmans issuance of its Joint Resolution dated
May 7, 2014 furnishing Sen. Estrada with copies of the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Figura,
Buenaventura and Sevidal. Such argument is specious failing as it does to properly appreciate the rights asserted by petitioner, i.e., the
right tobe furnished the evidence against him and the right to controvert such evidence beforea finding of probable cause is rendered
against him. In this case, the fact stillremains that petitioner was not given copies of incriminatory affidavits beforea finding of
probable cause to indict him was rendered. As a necessary corollary, he was not given sufficient opportunity to answer these
allegations beforea resolution to indict him was issued.

Further, it bears to stress at this point that the same Order gave Sen. Estrada only a five-day non-extendible period within which to
reply or comment to the counter-affidavits of his co-respondents. Clearly, the Order furnishing Sen. Estrada with the counter-affidavits
not only came too late, it did not provide him with adequate opportunity to rebut the allegations against him before the Office of the
Ombudsman actually decided to indict him. Hence, the full measure of the due process protection was not accorded to him. The May
7, 2014 Order cannot, therefore, cancel the Office of the Ombudsmans commission of grave abuse of discretion in trifling with, and
neglecting to observe, Sen. Estradas constitutional right to due process.

It is true that, in the past, the Court has allowed the belated disclosure by the Ombudsman to a respondent of affidavits containing
incriminating allegations against him. This may possibly be the reason why the Ombudsman deviated from the spirit of due process,
which, at its minimum, is to allow a respondent prior notice and afford him sufficient opportunity to be heard before a decision is
rendered against him. This cannot be further tolerated. A decision to indict a personmust not only be based on probable cause but also
with due regard to the constitutional rights of the parties to due process.

Relying on the case of Ruivivar v. Office of the Ombudsman, 8 the majority maintains that petitioners right to due process had not
been violated, as the Office of the Ombudsman belatedly furnished him with some of the affidavits that he requested on May 7, 2014,
before the said Office rendered its June 4, 2014 Joint Order.

It is worthy to note that Sen. Estrada requested that he be furnished with "affidavit/counter-affidavits/pleadings/filings filed by all the
other respondents and/or additional witnesses for the complainants." Yet, Sen. Estrada was only furnished with the affidavits of seven
(7) of his corespondents. His request to be given copies of the affidavits of the other nine (9) respondents, thus, remains unheeded by
respondent Ombudsman. Clearly, the fact of the deprivation of due process still remains and not mooted by the Ombudsmans
overdueand partial volte-face. And, unlike in Ruivivar, the Office of the Ombudsman did not furnish the petitioner with all the
documents he requested, leaving him in the dark as to the entire gamut of the charges against him.

Further, in Ruivivar, petitioner Ruivivars motion for reconsideration that prompted the Ombudsman to furnish her with copies of the
affidavits of private respondents witnesses came after the Decision was issued by the Ombudsman. Meanwhile, in this case, Sen.
Estradas request was submitted before the Ombudsman issued its probable cause finding resolution. Clearly, the Office of the
54
Ombudsman had all the opportunity to comply with the requirements of due process prior to issuing its March 28, 2014 Joint
Resolution, but cavalierly disregarded them. It may be rightfully conceded that its May 7, 2014 Order is nothing but an after thought
and a vain attempt to remedy the violation of petitioners constitutional right to due process. By then, petitioners constitutional right
to due process--to be given the opportunity to be heard and have a decision rendered based on evidence disclosed to himhad already
been violated. It cannot be remedied by an insufficient and belated reconsideration of petitioners request. What is more, it seems that
the doctrine laid down in Ruivivar is not consistent with the essence of the due process: to be heard before a decision is rendered.

This Court has time and again declared that the "moot and academic" principle is not a magical formula that automatically dissuades
courts in resolving a case.9 A court may take cognizance of otherwise moot and academic cases, if it finds that (a) there is a grave
violation of the Constitution; (b) the situation is of exceptional character and paramount public interest is involved; (c) the
constitutional issue raised requires formulation of controlling principles toguide the bench, the bar, and the public; and (d) the case is
capable of repetition yet evading review.10

Thus, even assuming arguendothat the present petition is mooted by the Ombudsmans May 7, 2014 Joint Resolution, it is
unquestionable that considering the notoriety of the petitioner and the grave violation of the Constitution he asserts, the
majorityshould have availed itself of the irresistible opportunity to set a controlling guideline on the right of a respondent to be
furnished, upon reasonable demand, of all evidence used against him during a preliminary investigation before a resolution thereon is
issued.

Respondent Ombudsman committed grave

abuse of discretion when it disregarded
Sen. Estradas right to a disclosure of all
the evidence against him in the
preliminary investigation.

A preliminary investigation is a safeguard intended to protect individuals from an abuse of the overwhelming prosecutorial power of
the state. It spells for a citizen the difference between months, if not years, of agonizing trial and jail term, on one hand, and peace of
mind and liberty on the other hand.11 In Uy v. Office of the Ombudsman,12 We ruled:

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.13

Thus, this Court had characterized a preliminary investigation as a substantive right forming part of due process in criminal
justice;14 and, contrary to Justice Leonens position, it is not merely a technical requirement that can be done away or hastily
conducted by state agencies. As eloquently put by Justice Brion, "to be sure, criminal justice rights cannot be substantive at the
custodial investigation stage, only to be less than this at preliminary investigation, and then return to its substantive character when
criminal trial starts."

In Yusop v. Hon. Sandiganbayan,15 this Court emphasized the substantive aspect of preliminary investigation and its crucial role in the
criminal justice system:

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to petitioner would
deprive him of the full measure of his right to due process. Hence, preliminary investigation with regard to him must be conducted.

xxx xxx xxx

In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the basic rudiments of due
process are complied with. For its part, the Sandiganbayan opted to remain silent when asked by this Court to comment on the
Petition.16

Furthermore, a preliminary investigation is not a one-sided affair; it takes on adversarial quality17 where the due process rights of both
the state and the respondents must be considered. It is not merely intended to serve the purpose of the prosecution. Rather, its purpose
is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation
of a crime, from the trouble, expenses and anxiety of public trial. 18 At the same time, it is designed to protect the state from having to
conduct useless and expensive trials.19 In Larranaga v. Court of Appeals,20 this Court elucidated, thus: Fairness dictates that the
request of petitioner for a chance to be heard in a capital offense case should have been granted by the Cebu City prosecutor. In Webb
vs. de Leon, we emphasized that "attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary
investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be
fair and impartial." As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation
conducted before being bound over for trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is
not a mere formal or technical right; it is a substantive right." xxx21

As such, preliminary investigations must be scrupulously conducted so that the constitutional right to liberty of a potential accused can
be protected from any material damage.22 This Court said so in Gerken v. Quintos,23 thus:

55
It is hardly necessary to recall that those who find themselves in the meshes of the criminal justice system are entitled to preliminary
investigation in order to secure those who are innocent against hasty, malicious, and oppressive prosecution and protect them from the
inconvenience, expense, trouble, and stress of defending themselves in the course of a formal trial. The right to a preliminary
investigation is a substantive right, a denial of which constitutes a deprivation of the accuseds right to due process. Such deprivation
of the right to due process is aggravated where the accused isdetained without bail for his provisional liberty. Accordingly, it is
important that those charged with the duty of conducting preliminary investigations do so scrupulously in accordance with the
procedure provided in the Revised Rules of Criminal Procedure.24

In this case, a careful observance of the procedure outlined in Rule II of AO No. 7, otherwise known as the Rules of Procedure of the
Office of the Ombudsmanis, therefore, imperative. Section 4, Rule II of AO No. 7 provides that the respondent in a preliminary
investigation shall have access to the evidence on record, viz:

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

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

(b) After such affidavit 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 complainants may file
reply affidavits within (10) days after service of the counter-affidavits.

(c) If the respondent does not file a counter-affidavit. The investigating officer may consider the comment filed by him, if
any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record. 25

In construing the foregoing provision, however, the Ombudsman is of the view that the respondents, the petitioners in this case,
access is limited only to the documents submitted by the complainant, and not his corespondents. Thus, in its March 27, 2014 Order
denying Sen. Estradas request to be furnished with copies of the affidavits of his co-respondents, respondent Ombudsman held:

This Office finds however finds (sic) that the foregoing provisions do not entitle respondent to be furnished all the filings of the
respondents.

xxx xxx xxx

It is to be noted that there is no provision under this Offices Rules of Procedure which entitles respondent to be furnished all the
filings by the other parties, eg. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos
themselves are all respondents in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the
Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting evidence to the complainant, and
not to the other respondents.

Unfortunately, the majority has subscribed to the Ombudsmans position maintaining that Sections 3 and 4 of Rule 112 of the Rules of
Court26 only require that a respondent be furnished with the copies of the affidavits of the complainant and the complainants
supporting witnesses, and not the affidavits of his co-respondents.

Certainly, the majority has neglected to consider that AO No. 7 or the Rules of Procedure of the Office of the Ombudsman prevails
over the provisions of the Rules of Court ininvestigations conducted by the Ombudsman. This is plain and unmistakable from Section
3, Rule V of AO No. 7, which states that the Rules of Court shall apply only in a suppletory character and only in matters not provided
by the Office of the Ombudsmans own rules:

Section 3. Rules of Court, application. In all matters not provided in these rules, the Rules of Court shall apply in a suppletory
character, or by analogy whenever practicable and convenient.27

As Section 4(c) of AO No. 7, or the Office of the Ombudsmans very own Rules of Procedure, clearly provides that a respondent shall
have access to all the "evidence on record" without discriminating as to the origin thereof and regardless of whether such evidence
came from the complainant or another respondent, the provisions of the Rules of Court supposedly limiting a respondents access to
the affidavits of the complaint only is not applicable to investigations conducted by the Ombudsman. Put piquantly, this restrictive
misconstruction of Sections 3 and 4 of the Rules of Court cannot be applied to Sen. Estrada to deprive him of his right to due process
clearly spelled out in AO No. 7.

In fact, a proper and harmonious understanding of Sections 3 and 4 of the Rules of Court vis--vis Section 4 (c) of AO No. 7 will
reveal that the common denominator of these provisions is the principle that a respondent in a preliminary investigation be afforded
sufficient opportunity to present controverting evidence before a judgment in that proceeding is rendered against him. Hence, a
respondent in a preliminary investigation cannot be denied copies of the counter-affidavits of his co-respondents should they contain
evidence that will likely incriminate him for the crimes ascribed to him.

Indeed, while the documents withheld by the Office of the Ombudsman may have been submitted by Sen. Estradas co-respondents,
they constitute evidence against him, not unlike the affidavits of the complainants. Sen. Estrada, therefore, had the right to be given
copies thereof and an opportunity to controvert the allegations contained therein pursuant to Section 4 (c) of AO No. 7.

56
More than the provisions of either procedural rules, this Court cannot neglect the constitutional precept underpinning these rules that
"no person shall be deprived of life, liberty, or property without due process of law."28 The essence of due process permeating the
rules governing criminal proceedings is that the respondent must be afforded the right to be heard before a decision is rendered against
him. This right must necessarily be predicated on the opportunity to know all the allegations against him, be they contained in the
affidavits of the complainant or of another respondent.

A respondent in a preliminary investigation cannot, therefore, be denied copies of the counter-affidavits of his co-respondents should
they contain evidence that will likely incriminate him for the crimes charged. In other words, it behooves the Office of the
Ombudsman to treat a respondents counter-affidavit containing incriminating allegations against a co-respondent as partaking the
nature ofa complaint-affidavit, insofar as the implicated respondent is concerned. Thus, it is my opinion that the Office of the
Ombudsman should follow the same procedure observed when a complaint is first lodged with it, i.e., furnish a copy to the respondent
incriminated in the counter-affidavit and give him sufficient time to answer the allegations contained therein. It need not wait for a
request or a motion from the implicated respondent to begiven copies of the affidavits containing the allegations against him. A
request or motion to be furnished made by the respondent alluded to in the counter-affidavits makes the performance of such duty by
the Office of the Ombudsman more urgent.

In the seminal case of Ang Tibay v. Court of Industrial Relations, 29 this Court identified the primary rights that must be respected in
administrative proceedings in accordance with the due process of law. Not the least of which rights is that the decision must be
rendered on evidence disclosed to the parties affected, viz:

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the
parties affected. (Interstate Commerce Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by
confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected intheir right to know and meet
the case against them. xxx30

Thus, in Office of Ombudsman v. Reyes,31 this Court set aside the decision of the Ombudsman that was based on the counter-
affidavits of therein respondent Reyes co-respondents that were not furnished to him before the Ombudsman rendered his decision.
The Court held:

In the main, the evidence submitted by the parties in OMB-MINADM-01-170 consisted of their sworn statements, as well as that of
their witnesses. In the affidavit of Acero, he categorically identified both Reyes and Pealoza as the persons who had the prerogative
to reconsider his failed examination, provided that he paid an additional amount on top of the legal fees. For his part, Pealoza
ostensibly admitted the charge of Acero in his counter-affidavit but he incriminated Reyes therein as the mastermind of the
illicitactivity complained of .

Reyes faults petitioner for placing too much reliance on the counter-affidavit of Pealoza, as well as the affidavits of Amper and
Valdehueza. Reyes claims that he was not furnished a copy of the said documents before petitioner rendered its Decision dated
September 24, 2001. Reyes, thus, argues that his right to due process was violated. Petitioner, on the other hand, counters that Reyes
was afforded due process since he was given all the opportunities tobe heard, as well as the opportunity to file a motion for
reconsideration of petitioners adverse decision.

On this point, the Court finds merit in Reyes contention.

xxx xxx xxx

Moreover, Department of Health v. Camposano restates the guidelines laid down in AngTibay v. Court of Industrial Relations that due
process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents right to a
hearing, which includes the right to present ones case and submit supporting evidence, must be observed; (2) the tribunal must
consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the
decision must be rendered on the evidence presented at the hearing, or atleast contained in the record and disclosed to the parties
affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy
and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents
would know the reasons for it and the various issues involved.

In the present case, the fifth requirement stated above was not complied with. Reyes was not properly apprised of the evidence offered
against him, which were eventually made the bases of petitioners decision that found him guilty of grave misconduct. 32

It is true that, in this case, the failure to furnish copies of the counteraffidavits happened in a preliminary investigation, and not in an
administrative proceeding as what happened in Reyes. There is likewise no gainsaying that the quanta of proof and adjective rules
between a preliminary investigation and an administrative proceeding differ. In fact, "[i]n administrative proceedings the technical
rules of pleading and procedure, and of evidence, are not strictly adhered to; they apply only suppletorily." 33

Yet, it must be noted that despite the procedural leniency allowed in administrative proceedings, Reyes still required that the
respondent be furnished with copies of the affidavits of his co-respondent to give him "a fair opportunity to squarely and intelligently
answer the accusations therein or to offer any rebuttal evidence thereto." Again, Reyes was rendered in a case where at stake was, at
worst, only the right of the respondent to hold a public office.

In the present case, Sen. Estrada is not only on the brink of losing his right to hold public office but also of being dragged to an open
and public trial for a serious crime where he may not only lose his office and good name, but also his liberty, which, based on the
hierarchy of constitutionally protected rights, is second only to life itself. 34 In a very real sense, the observance of due process is even
more imperative in the present case.
57
In fact, this Court in Uy v. Office of Ombudsman35 applied the standards of "administrative" due process outlined in Ang Tibay to the
conduct of preliminary investigation by the Ombudsman. Wrote this Court in Uy:

[A]s in a court proceeding (albeit with appropriate adjustments because it is essentially still an administrative proceeding in which the
prosecutor or investigating officer is a quasi-judicial officer by the nature of his functions), a preliminary investigation is subject to the
requirements of both substantive and procedural due process. This view may be less strict in its formulation than what we held in
Cojuangco, Jr. vs. PCGG, et al.[30] when we said:

xxx xxx xxx

In light of the due process requirement, the standards that at the very least assume great materiality and significance are those
enunciated in the leading case of Ang Tibay v. Court of Industrial Relations. This case instructively tells us - in defining the basic due
process safeguards in administrative proceedings - that the decision (by an administrative body) must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties affected; only by confining the administrative
tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them; it
should not, however, detract from the tribunal's duty to actively see that the law is enforced, and for that purpose, to use the authorized
legal methods of securing evidence and informing itself of facts material and relevant to the controversy.

Mindful of these considerations, we hold that the petitioner's right to due process has been violated. 36

It must be emphasized that, despite the variance in the quanta of evidence required, a uniform observance of the singular concept of
due process is indispensable in all proceedings. In Garcia v. Molina,37 this Court held, thus:

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The
violation of a party's right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right to due process is apparent, a decision rendered in disregard of that right is void for lack of
jurisdiction. This rule is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee that no man
shall be deprived of life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or
administrative) where he stands to lose the same.38

To be sure, a preliminary investigation is not part of trial and the respondent is not given the right to confront and cross-examine his
accusers. Nonetheless, a preliminary investigation is an essential component part of due process in criminal justice. A respondent
cannot, therefore, be deprived of the most basic right to be informed and to be heard before an unfavorable resolution is made against
him. The fact that, in a preliminary investigation, a respondent is not given the right to confront nor to cross examine does not mean
that the respondentis likewise divested of the rights to be informed of the allegations against him and to present countervailing
evidence thereto. These two sets of rights are starkly different.

In this case, it is not disputed that the March 27, 2014 Order denying Sen. Estradas Request was issued a day before the Ombudsman
rendered the Joint Resolution finding probable cause to indict him. The Joint Resolution notably contains reference to the counter-
affidavits that were not disclosed at that time to Sen. Estrada. There is, therefore, no gains aying that the Office of the Ombudsman
violated its duty to inform the respondent of all allegations against him. In the process, Sen. Estrada was not afforded sufficient
opportunity to know and refute the allegations against him before the Ombudsman acted on those allegations.

The immortal cry of Themistocles: "Strike! But hear me first!" distills the essence of due process. It is, thus, indispensable that the
respondent is given "the opportunity to be heard, logically preconditioned on prior notice, before judgment is rendered." 39 As Sen.
Estrada was not given copies of counter-affidavits containing allegations against him and afforded a chance to refute these allegations
before the Joint Resolution to indict him was rendered, he was clearly denied his right to the due process of law.

The majority, however, suggests thatI have overlooked the Court of Appeals reasoning in Reyes that, pursuant to the doctrine of res
inter alios acta alteri nocere non debet, the respondent cannot be prejudiced by the declaration of his co-respondent. Justice Carpio
then concludes that "[i]n OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estradas co-respondents can in no way
prejudice Sen. Estrada."

Clearly, the majority ignores the obvious fact that Sen. Estrada had already been prejudiced by the affidavits of his co-respondents that
were not furnished to him. The majority Decision pays no heed to the fact that the Joint Resolution of the Office of the Ombudsman
precisely invoked the counter-affidavits of Sen. Estradas co-respondents that were not furnished to him. To recall, the March 28,
2014 Joint Resolution of the Office of the Ombudsman contains reference to the counter-affidavits that were not thereto for disclosed
to Sen. Estrada. In finding probable cause to indict Sen. Estrada, respondent Office of the Ombudsman quoted from the withheld
counter-affidavitsof respondents Tuason,40 Cunanan,41 Figura,42 Buenaventura,43 and Sevidal.44 Thus, to state that "the admissions of
Sen. Estradas co-respondents can in no way prejudice Sen. Estrada" is clearly at war with the facts of the case.

With that, the suggestion that a thorough consideration of jurisprudence must be made before they are used as basis for this Courts
decisions is appreciated. Contrary to what the majority Decision suggests, the Court of Appeals disquisition quoted in Reyes did not
go unnoticed but was simply deemed irrelevant in the present case. In fact, the application of the res inter alios actadoctrine was not
even considered by this Court in Reyes; it was simply a part of the narration of the factual antecedents. Hence, a discussion of the
doctrine in the present controversy is even more unnecessary.

The right to the disclosure of the evidence against a party prior to the issuance of a judgment against him is, toreiterate, a vital
component of the due process of law, a clear disregard of such right constitutes grave abuse of discretion. As this Court has held,
grave abuse of discretion exists when a tribunal violates the Constitution or grossly disregards the law or existing jurisprudence.45 In

58
other words, once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the decision or resolution is
deemed ousted of jurisdiction. 46 As the Court held in Montoya v. Varilla47 --

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The
violation of a partys right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of
jurisdiction.48

Given the foregoing perspective, the issuance of the corrective writ of certiorari is warranted in the present controversy.

Effect of irregularity of preliminary investigation.

On one hand, a case for the total nullification of the proceedings, including the filing of the dismissal of the Information filed and the
quashal of the arrest warrants, may be made. On the other, a position has been advanced that the irregularity of the preliminary
investigation is remedied by the issuance of the arrest warrant, so that a deprivation of the due process during the preliminary
investigation is irrelevant.

Between these two extremes, it is my considered view that the irregularity at the preliminary investigation stage arising from a
violation of the due process rights of the respondentw arrants a reinvestigation and the suspension of the proceedings in court where
an information has already been filed.

The grave abuse of discretion committed by the Office of the Ombudsman in its conduct of the preliminary investigation cannot divest
the Sandiganbayan of the jurisdiction over the case considering that Informations had already been filed, as in fact a warrant of arrest
had already been issued in connection therewith.49 It is a familiar doctrine that the irregularity in, or even absence of, a preliminary
investigation is not a ground for the deprivation of the court ofits jurisdiction. So it was that in Pilapil v. Sandiganbayan,50 the Court
held, thus:

We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court refersto the lack
of any law conferring upon the court the power to inquire into the facts, to apply the law and to declare the punishment for an offense
in a regular course of judicial proceeding. When the court has jurisdiction, as in this case, any irregularity in the exercise of that power
is not a ground for a motion to quash. Reason is not wanting for this view. Lack of jurisdiction is not waivable but absence of
preliminary investigation is waivable. In fact, it is frequently waived. 51

On the other hand, it is erroneous to simply disregard the violation of the due process of law during the preliminary investigation as
irrelevant and without any significant effect. Such stance will only serve to "legitimize the deprivation of due process and to permit the
Government to benefit from its own wrong or culpable omission and effectively dilute important rights of accused persons well-nigh
to the vanishing point."52 Thus, I submit that the proper recourse to be taken under the premises isthe suspension of the proceedings in
the Sandiganbayan and the immediate remand of the case to the Office of the Ombudsman 53 so that Sen. Estrada, if he opts to, can file
his counter-affidavit and controverting evidence to all the counter-affidavits containing incriminating allegations against him.

The jurisdiction acquired by the trial court upon the filing of an information, as recognized in Crespo v. Mogul, 54 is not negated by
such suspension of the proceedings or the reinvestigation by the Ombudsman. Surely, this Courts pronouncements in Crespowas not
intended to curb the power of this Court to supervise lower courts and ensure that the rights of the accused are respected and protected
against the all-encompassing powers of the State.

The fine balance recognizing the jurisdiction of the trial court and the right of a respondent to a reinvestigation has been observed in
several cases. In Matalam v. Sandiganbayan,55 the petitioner who was not afforded a chance to fully present his evidence during the
preliminary investigation stage was afforded a reinvestigation, thus:

It is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the
accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment oftrial, is the function of the
prosecution. .Accordingly, finding that petitioner was not given the chance to fully present his evidence on the amended
information which contained a substantial amendment,a new preliminary investigation is in order.

xxx xxx xxx

Finally, as to petitioners prayer that the Amended Information be quashed and dismissed, the same cannot be ordered. The absence or
incompleteness of a preliminary investigation does not warrant the quashal or dismissal of the information. Neither does it affect the
courts jurisdiction over the case or impair the validity of the information or otherwise render it defective. The court shall hold in
abeyance the proceedings on such information and order the remand of the case for preliminary investigation or completion thereof.56

A similar disposition was made in Torralba v. Sandiganbayan57 where the Court held:

The incomplete preliminary investigation in this case, however, does not warrant the quashal of the information, nor should it
obliterate the proceedings already had. Neither isthe court's jurisdiction nor validity of an information adversely affected by
deficiencies in the preliminary investigation. Instead, the Sandiganbayan is to hold in abeyance any further proceedings therein and to
remand the case to the Office of the Ombudsman for the completion of the preliminary investigation, the outcome of which shall then
beindorsed to Sandiganbayan for its appropriate action.

59
This course of action was also taken by the Court in a catena of other cases including Go v. Court of Appeals, 58Yusop v.
Sandiganbayan,59 Rodis, Sr. v. Sandiganbayan,60 and Agustin v. People.61

It might be argued that such recourse will only be circuitous and might simply be postponing the inevitable. Surely, it will hold the
conduct of the case. But where the rights of an individual are concerned, the end does not justify the means.To be sure, "society has
particular interest in bringing swift prosecutions." 62 Nonetheless, the constitutional rights of citizens cannot be sacrificed at thealtar of
speed and expediency.As enunciated in Brocka v. Enrile,63 the Court cannot, and will not, sanction procedural shortcuts that forsake
dueprocess in our quest for the speedy disposition of cases. The Court held:

We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however, believe that this
should not be a license to run roughshod over a citizen's basic constitutional rights, such as due process, or manipulate the law to suit
dictatorial tendencies.

xxx xxx xxx

Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside to satisfy
perceived illusory visions of national grandeur.: and

In the case of J. Salongav. Cruz Pao, We point out:

"Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be
free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524,
February 18, 1985, 134 SCRA 438-at p. 448).64

Indeed, the prime goal of our criminal justice system remains to be the achievement of justice under a rule of law. This ideal can only
be attained if the Ombudsman, and the prosecutorial arm of the government for that matter, ensures the conduct of a proper, thorough,
and meticulous preliminary investigation. The frustration caused by a suspension of the proceedings in the Sandiganbayan to allow the
Office of the Ombudsman to correct its error cannot equal the despair of the deprivation of the rights of a person under the
Constitution.

Thus, I submit that the Office of the Ombudsman should be ordered to take a second look at the facts of the case after Sen. Estrada is
given copies of all the documents he requested and a sufficient chance to controvert, if so minded, all the allegations against him.

For all the foregoing, I vote to partially GRANT the Petition in G.R. No. 212140-4, to SET ASIDE the assailed March 27, 2014 Order,
and to ORDER the immediate REMAND to the Office of the Ombudsman of OMB-C-C-13-0313 and OMB-C-C-13-0397 so that Sen.
Estrada will be furnished all the documents subject of his Request dated March 20, 2014 and be allowed a period of fifteen (15) days
to comment thereon. Further, I vote that the Sandiganbayan should be ORDERED to SUSPEND the proceedings in SB-14-CRM-0239
and SB-14-CRM-0256 to SB-14-CRM-0266 until the conclusion of the reinvestigation.

CONCURRING OPINION

LEONEN, J.:

I concur with the ponencia. The petition should be dismissed for failure to show grave abuse of discretion on the part of the
Ombudsman. It is unorthodox and contrary to existing doctrine to suspend the proceedings in a court that has acquired jurisdiction
simply on the basis of an alleged error on the part of the Ombudsman. 1

I agree that the fuhdamental constitutional norm of "due process of law" embeds the social Value of fairness. I disagree, however, with
the approach proposed by both Justices Velasco and Brion in their dissents that will clinically remove the preliminary investigation
from the entire process of holding the accused to account through a process of criminal trial. The approach they propose also detaches
the formalities of procedure from the preliminary investigation's purpose.

In my view, the relevant questions to ask are the following:

First, has the petitioner been so fundamentally deprived of his opportunity to be hear in the light of the purposes of a preliminary
investigation?

Second, assuming that aspects of the opportunity to be heard were less than ideally observed, are these infirmities so fatal that these
deprive petitioner of all opportunities to be heard during the course of judicial examination, i.e., pre-trial and trial?

Third, granting without conceding that there were infirmities in the preliminary investigation, will there be a public policy interest in
suspending the criminal action? Or would it in effect be detrimental to the fundamental rights of both the prosecution and the
petitioner?

The grant of the opportunity to be heard in a preliminary investigation must relate to the purpose for which a preliminary investigation
is created. To declare that the judicial proceedings in a criminal procedure will be affected by alleged irregularities in a preliminary
investigation misapprehends the nature and purpose of a preliminary investigation.

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Due process takes a different form in a preliminary investigation as compared with its form in a criminal action. In Artillero v.
Casimiro:2

The law is vigilant in protecting the rights of an accused. Yet, notwithstanding the primacy put on the rights of an accused in a
criminal case, even they cannot claim unbridled rights in [p]reliminary [i]nvestigations. In Lozada v. Hernandez, we explained the
nature of a [p]reliminary [i]nvestigation in relation to the rights of an accused, to wit:

It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is merely preparatory
thereto, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe the
accused guilty thereof. The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is
statutory. And rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon
the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law." 3 (Emphasis
supplied)

The right to due process of accused respondent in a preliminary investigation is merely a statutory grant.It is not a constitutional
guarantee. Thus, the validity of its procedures mustbe related to the purpose for which it was created.

Salonga v. Cruz-Pao4 clarifies the purpose of a preliminary investigation:

The purpose of a preliminary investigation is 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.5

Thus, the right of a respondent topresent counter-affidavits and to confront the witnesses against him or her in a preliminary
investigation is merely to assist the prosecution to decide in a summary manner whether there is basis for supporting a charge and
preventing a harassment suit that prejudices respondent and wastes the resources of the state. The process is essentially one-sided, that
is, it only serves to assist the prosecution in determining whether it has prima facie evidence to sustain the filing of an information. In
Salonga:

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it
supports or to establish the facts, or to counter balance the presumption of innocence to warrant a conviction. 6

Due to the preliminary nature of the proceedings, it would be erroneous to insist that the due process safeguards in Ang Tibay v. Court
of Industrial Relations7 apply in a preliminary investigation.

It can be recalled that in Ang Tibay, this court observed that although quasi-judicial agencies "may be said tobe free from the rigidity
of certain procedural requirements[,] [it] does not mean that it can, in justifiable cases before it, entirely ignore or disregard the
fundamental and essential requirements of due process in trials and investigations of an administrative character." 8 It presupposes that
the administrative investigation has the effect of an adjudication on respondents guilt or innocence.

A preliminary investigation is not a quasi-judicial proceeding similar to that conducted by other agencies inthe executive branch. The
prosecutor does not pass judgment on a respondent; he or she merely ascertains if there is enough evidence to proceed to trial. It is a
court of law which ultimately decides on an accuseds guilt or innocence.

It would also be erroneous to conclude that the prosecutor performs a quasi-judicial function merely on the basis that the proceeding is
similar to that in courts. This court clarified the similarities in Bautista v. Court of Appeals: 9

Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citing Cojuangco v.
PCGG, Koh v. Court of Appeals, Andaya v. Provincial Fiscal of Surigao del Norteand Crespo v. Mogul. In these cases this Court held
that the power to conduct preliminary investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like
quasi-judicial bodies, the prosecutor is an office in the executive department exercising powers akin to those of a court. Here is where
the similarity ends.

A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial
body has been defined as "an organ of government other than a court and other than a legislature which affects the rightsof private
parties through either adjudication or rule-making."

....

[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions.

Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal 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. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.10 (Emphasis supplied)

Preliminary investigation, in cases of public officers, is outlined in Republic Act No. 6770 11 or The Ombudsman Act of 1989, and
Administrative Order No. 712 or The Rules of Procedure of the Office of the Ombudsman. Section 18 of Republic Act No. 6770
61
mandates the Office of the Ombudsman to formulate its rules of procedure. The procedure for preliminary investigations is outlined in
Rule II, Section 4 of Administrative Order No. 7:

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

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

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file
reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any,
as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.

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

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

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be
afforded the opportunity to be present but without the right to examine or crossexamine 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 orapproval of the Ombudsman in cases
falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.

Furthermore, the Rules of Court, Rule 112, Section 1 of the Rules of Criminal Procedure describes the process as:

Section 1. Preliminary investigation defined; when required.

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a wellfounded
belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

The opportunity to be heard and to defend ones self issatisfied by the filing of respondents counter-affidavits. There is no right
granted to a respondent in a preliminary investigation to be furnished with the counter affidavits of his or her co-respondents, save for
the provision where he or she "shall have access tothe evidence on record,"13 regardless of whether or not he or she files a counter-
affidavit. It contemplates a situation wherein the evidence on record only consists of complainants evidence, to which respondent
shall have access "[i]n any event."14 Given the purpose of a preliminary investigation, this should already be the extent of due process
granted to him or her by law.

The Ombudsman may avail herself of information provided by the respondent to the case contained in his or her counter-affidavits
against another respondent. To require that the Ombudsman conduct her summary investigation with all the rigors of a criminal trial
would be more than what is statutorily required. Besides, all she needs to determine is whether there is sufficient probable cause that
will give confidence in moving forward with the prosecution.

II

Assuming without conceding that there were irregularities in the preliminary investigation, any alleged infirmity in the preliminary
investigation does not deprive the petitioner of his opportunity to be heard during the course of judicial examination.

Preliminary investigation is not part of the criminal action. It is merely preparatory and may even be disposed of in certain
situations.15 The "invalidity or absence of preliminary investigation does not affect the jurisdiction of the court." 16 Thus, in People v.
Narca:17

It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the parties. This is why
preliminary investigation isnot considered as a part of trial but merely preparatory thereto and that the records therein shall not form
part of the records of the case in court. Parties may submit affidavits but have no right to examine witnesses though they can propound
questions through the investigating officer. In fact, a preliminary investigation may even be conducted ex-parte in certain cases.
Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine a well grounded belief if a crime
62
was "probably" committed by an accused. In any case, the invalidity or absence of a preliminary investigation does not affect the
jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise
render it defective.18 (Emphasis supplied)

Similarly, in Drilon v. Court of Appeals,19 this court clarified the role and function of preliminary investigation.

Probable cause should be determined in a summary but scrupulous manner to prevent material damage to a potential accused's
constitutional right of liberty and the guarantees of freedom and fair play. The preliminary investigation is not the occasion for the full
and exhaustive display of the parties' evidence. It is for the presentation of such evidence as may engender a well-grounded belief that
an offense has been committed and that the accused is probably guilty thereof.It is a means of discovering the persons who may be
reasonably charged with a crime. The validity and merits of a party's defense and accusation, as well as admissibility of testimonies
and evidence, are better ventilated during trial proper than at the preliminary investigation level. 20(Emphasis supplied)

Any irregularities that may have been committed during a preliminary investigation should not deprive the parties both the
prosecution and the accused of their rights to due process and to trial. A criminal trial is a separate proceeding from that of the
preliminary investigation. The courts will judge and act at their own instance, independently of the conclusions of the prosecutor
since:

a finding of probable cause does not ensure a conviction, or a conclusive finding of guilt beyond reasonable doubt. The allegations
adduced by the prosecution will be put to test in a fullblown trial where evidence shall be analyzed, weighed, given credence or
disproved.21

Thus, after determination of probable cause by the Sandiganbayan, the best venue to fully ventilate the positions of the parties in
relation to the evidence in this case is during the trial. The alleged violation of due process during the preliminary investigation
stage,if any, does not affect the validity of the acquisition of jurisdiction over the accused.

There is, of course, a fundamental difference between a government agency allegedly committing irregularities in the conduct of a
preliminary investigation and the failure of a government agency in conducting a preliminary investigation. The first is a question of
procedure while the second involves a question of whether the government agency deprived respondent of a statutory right. It is, thus,
erroneous for the dissenting opinions to cite Uy v. Ombudsman,22 Yusop v. Sandiganbayan,23 and Larraaga v. Court of Appeals24 and
to insist that irregularities in the conduct of a preliminary investigation deprived petitioner of his constitutional rights. These cases
involve situations where a regular preliminary investigation was never conducted despite repeated requests.

In this case, the preliminary investigation was conducted by the Office of the Ombudsman in the regular courseof its duties. The only
question involved is whether petitioner has the right to be furnished copies of the affidavits of his co-respondents in the preliminary
investigation despite the absence of this requirement in the rules of procedure.

III

The right to due process of law applies to both the prosecution representing the people and the accused. Even as the Constitution
outlines a heavy burden on the part of law enforcers when a person is "under investigation for the commission of an offense" 25 and
when a person is actually under prosecution,26 it does not do away with the guarantee of fairness both for the prosecution and the
accused.

In People v. Court of Appeals and Jonathan Cerbo, 27 this court stated:

The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial powers do need to be
protected when circumstance 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. 28 (Emphasis supplied)

A defect in the procedure in the statutory grant of a preliminary investigation would not immediately be considered as a deprivation of
the accuseds constitutional right to due process. Irregularities committed in the executive determination of probable cause do not
affect the conduct of a judicial determination of probable cause.

The Constitution mandates the determination by a judge of probable cause to issue a warrant of arrest against an accused. This
determination is done independently of any prior determination made by a prosecutor for the issuance of the information.

Article III, Section 2 of the Constitution states:

ARTICLE III

BILL OF RIGHTS

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce and particularly describing the place to be searched and the persons or things to be seized.(Emphasis supplied)

63
It is a constitutional requirement that before a warrant can be issued, the judge must first determine the existence of probable cause.
The phrase "to be determined personally" means that the judge determines the existence of probable cause himself or herself. This
determination can even be ex partesince the Constitution only mentions "after examination under oath or affirmation of the
complainant and the witnesses he [or she] may produce."

The judicial determination of probable cause is considered separate from the determination of probable cause by the prosecutor in a
preliminary investigation. In People v. Inting:29

Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant
of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if
the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not
there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor.30(Emphasis supplied)

The difference between the executive determination of probable cause and the judicial determination of probable cause is doctrinal
and has been extensively explained by this court. In Ho v. People:31

Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of
probable cause by the prosecutor isfor a purpose different from that which is to be made by the judge. Whether there is reasonable
ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The
judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a necessity
for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on
one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to
justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own
conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide
independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his
own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of
the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the
latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on
hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation besubmitted 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 prosecutor's 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.32 (Emphasis supplied)

The issuance of the warrant of arrest is based on an independent assessment by the Sandiganbayan of the evidence on hand, which
may or may not be the same evidence that the prosecutor relies on to support his or her own conclusions. Hence, irregularities in the
conduct of the preliminary investigation for purposes of the criminal procedure are negated upon the issuance of the warrant of
arrest. The Sandiganbayan has, independent of the preparatory actions by the prosecutor, determined for themselves the existence of
probable causeas to merit the arrest of the accused, acquire jurisdiction over his or her person, and proceed to trial.

Once the information is filed and the court acquires jurisdiction, it is the Sandiganbayan that examines whether,despite the alleged
irregularity in the preliminary investigation, there still isprobable cause to proceed to trial.

The actions or inactions of the Ombudsman or the investigating prosecutor do not bind the court.

In Crespo v. Mogul,33 this court clearly stated that:

[t]he filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case,
which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of
the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court
thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of
said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and
recommendations of the fiscal should be submitted to the Court for appropriate action. While it istrue that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought
to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of
64
the Court, the only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the
People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of
Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or
deny it and require that the trial on the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of
Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the
Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution
of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as
We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in
spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the
Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The
fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be
null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the
presentation of the evidence to the private prosecutor but still under his direction and control. The rule therefore in this jurisdiction is
that once a complaint or information is filed in Court, any disposition of the case as to its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on
what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to
dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if
this is. done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of
the Secretary of Justice who reviewed the records of the investigation. 34(Emphasis supplied)

Thus, after the Sandiganbayan has determined for itself the existence of probable cause, it is also within its authority to issue the
warrant of arrest. The Sandiganbayan should proceed with due and deliberate dispatch to proceed to trial in order to provide the
accused with the fullest opportunity to defend himself or herself.

ACCORDINGLY, I vote that the petition be DENIED. The Sandiganbayan should proceed with the cases docketed as SB-14-CRM-
0239 and SB-14-CRM-0256 to SB-14-CRM-0266 with due and deliberate dispatch.

65
G.R. No. 189028 July 16, 2013

NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST FOR LITERATURE
BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL ARTS (PAINTING) BENEDICTO CABRERA,
NATIONAL ARTIST FOR VISUAL ARTS (SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST FOR VISUAL
ARTS (PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL ARTIST FOR PRODUCTION DESIGN SALVADOR
BERNAL, UNIVERSITY PROFESSOR EMERITUS GEMINO ABAD, DEAN MARVIC M.V.F. LEONEN (UP COLLEGE
OF LAW), DEAN DANILO SILVESTRE (UP COLLEGE OF ARCHITECTURE), DEAN ROLAND TOLENTINO (UP
COLLEGE OF MASS COMMUNICATION), PROF. JOSE DALISAY, DR. ANTON JUAN, DR. ALEXANDER CORTEZ,
DR. JOSE NEIL GARCIA, DR. PEDRO JUN CRUZ REYES, PROF. JOSE CLAUDIO GUERRERO, PROF. MICHAEL M.
COROZA, PROF. GERARD LICO, PROF. VERNE DE LA PENA, PROF. MARIAN ABUAN, PROF. THEODORE O. TE,
DR. CRISTINA PANTOJA-HIDALGO, PROF. JOSE WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF. NICOLO
DEL CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON REMOTO, PROF. PRISCELINA
PATAJOLEGASTO, PROF. BELEN CALINGACION, PROF. AMIEL Y. LEONARDIA, PROF. VIM NADERA, PROF.
MARILYN CANTA, PROF. CECILIA DELA PAZ, ROF. CHARLSON ONG, PROF. CLOD MARLON YAMBAO, PROF.
KENNETH JAMANDRE, PROF. JETHRO JOAQUIN, ATTY. F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX
ANGELES, MR. FERNANDO JOSEF, MS. SUSAN S. LARA, MR. ALFRED YUSON, MS. JING
PANGANIBANMENDOZA, MR. ROMULO BAQUIRAN, JR., MR. CARLJOE JAVIER, MS. REBECCA T. ANONUEVO,
MR. JP ANTHONY D. CUNADA, MS. LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS, MR. GIL
OLEA MENDOZA, MR. EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR. ANGELO R. LACUESTA, MS. ANNA
MARIA KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY PERIQUET, MS. CARLA PACIS, MR. J. ALBERT
GAMBOA, MR. CESAR EVANGELISTA BUENDIA, MR. PAOLO ALCAZAREN, MR. ALWYN C. JAVIER, MR.
RAYMOND MAGNO GARLITOS, MS. GANG BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA, MS. JUDITH
TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS. CAMILLE DE LA ROSA, MR. JAMES
LADIORAY, MR. RENATO CONSTANTINO, JR., and CONCERNED ARTISTS OF THE PHILIPPINES
(CAP), Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT,
THE CULTURAL CENTER OF THE PHILIPPINES, THE NATIONAL COMMISSION ON CULTURE AND THE ARTS,
MS. CECILE GUIDOTE-ALVAREZ, MR. CARLO MAGNO JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO
MANOSA, AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING UNDER THEIR INSTRUCTIONS, DIRECTION,
CONTROL AND SUPERVISION IN RELATION TO THE CONFERMENT OF THE ORDER OF THE NATIONAL
ARTIST AND THE RELEASE OF FUNDS IN RELATION TO THE CONFERMENT OF THE HONORS AND
PRIVILEGES OF THE ORDER OF NATIONAL ARTISTS ON RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS,
MORENO AND MANOSA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Art has traditionally been viewed as the expression of everything that is true, good and beautiful. As such, it is perceived to evoke and
produce a spirit of harmony. Art is also considered as a civilizing force, a catalyst of nation-building. The notion of art and artists as
privileged expressions of national culture helped shape the grand narratives of the nation and shared symbols of the people. The artist
does not simply express his/her own individual inspiration but articulates the deeper aspirations of history and the soul of the
people.2 The law recognizes this role and views art as something that "reflects and shapes values, beliefs, aspirations, thereby defining
a peoples national identity."3 If unduly politicized, however, art and artists could stir controversy and may even cause discord, as
what happened in this case.

The Antecedents

History of the Order of National Artists

On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 1001 4 and, upon recommendation of the Board of
Trustees of the Cultural Center of the Philippines (CCP), created the category of Award and Decoration of National Artist to be
awarded to Filipinos who have made distinct contributions to arts and letters. In the same issuance, Fernando Amorsolo was declared
as the first National Artist.

On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001 "by creating a National Artists Awards
Committee" that would "administer the conferment of the category of National Artist" upon deserving Filipino artists. The Committee,
composed of members of the Board of Trustees of the CCP, was tasked to "draft the rules to guide its deliberations in the choice of
National Artists, to the end that those who have created a body of work in the arts and letters capable of withstanding the test of time
will be so recognized."

The authority of the National Artists Awards Committee to administer the conferment of the National Artist Award was again
reiterated in Presidential Decree No. 2086 issued on June 7, 1973.

On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National Commission for Culture and the Arts,
was signed into law. It established the National Commission for Culture and the Arts (NCCA) and gave it an extensive mandate over
the development, promotion and preservation of the Filipino national culture and arts and the Filipino cultural heritage. The NCCA
was tasked with the following:

66
Sec. 8. The Commission. A National Commission for Culture and Arts is hereby created to formulate policies for the development
of culture and arts; implement these policies in coordination with affiliated cultural agencies; coordinate the implementation of
programs of these affiliated agencies; administer the National Endowment Fund for Culture and Arts (NEFCA); encourage artistic
creation within a climate of artistic freedom; develop and promote the Filipino national culture and arts; and preserve Filipino cultural
heritage. The Commission shall be an independent agency. It shall render an annual report of its activities and achievements to the
President and to Congress.

Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend recognition of artistic achievement through
awards, grants and services to artists and cultural groups which contribute significantly to the Filipinos cultural legacy." 7 In
connection with this mandate, the NCCA is vested with the power to "advise the President on matters pertaining to culture and the
arts, including the creation of a special decoration or award, for persons who have significantly contributed to the development and
promotion of Philippine culture and arts." 8

As both the CCP Board of Trustees and the NCCA have been mandated by law to promote, develop and protect the Philippine
national culture and the arts, and authorized to give awards to deserving Filipino artists, the two bodies decided to team up and jointly
administer the National Artists Award.9 Thereafter, they reviewed the guidelines for the nomination, selection and administration of
the National Artists Award. Pursuant to their respective powers to draft and promulgate rules, regulations and measures to guide them
in their deliberations in the choice of National Artists, the CCP and NCCA adopted the following revised guidelines in September
200710:

4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the Arts (NCCA) shall plan, organize and implement the Order of
National Artists in coordination with the Cultural Center of the Philippines (CCP).

4.2. It shall enlist the support and cooperation of private sector experts from the various fields of art to ensure that
the awards are implemented in a successful and impartial manner.

4.3. The National Artist Award Secretariat shall commission art experts to form a Special Research Group who shall
verify information submitted on nominees and provide essential data.

They shall be selected for their specialization and familiarity with the works and accomplishments of nominated
artists.

4.4. The Special Research Group shall be composed of ten (10) to twenty (20) members who have expertise in one
or more fields or disciplines.

4.5. The National Artist Award Council of Experts shall be created before or during the nomination period. It is
tasked to screen nominees and recommend to the NCCA and CCP Boards the candidates for the Order of National
Artists. It shall be composed of highly regarded peers, scholars, (including cultural philosophers and historians),
academicians, researchers, art critics, and other knowledgeable individuals. A wider age-range of experts who would
have first-hand knowledge of achievements of nominees shall be considered.

4.6. The selection of the members of the National Artist Award Council of Experts shall be based on the following
criteria:

(a) should have achieved authority, credibility and track record in his field(s) of expertise;

(b) should have extensive knowledge in his field(s) and his views on Philippine art and culture must be
national in perspective;

(c) should be a recognized authority in the study or research of Philippine art and culture;

(d) must be willing to devote sufficient time and effort to the work of the Council;

(e) must be willing to sign a non-disclosure statement in order to safeguard the confidentiality of the
deliberations;

(f) must not have been convicted with finality of any crime by a court of justice or dismissed for cause by
any organization, whether public or private.

4.7. The National Artist Award Council of Experts shall be composed of a maximum of seven (7) members each of
the seven (7) areas/disciplines. The living National Artists will automatically become members in addition to the
forty-nine (49) selected members. These members will constitute the first deliberation panel and will be invited to
evaluate the nominations and materials submitted by the Special Research Group.

4.8. Any member of the Council of Experts who is nominated or related to a nominee up to the fourth degree of
consanguinity or affinity shall inhibit himself/herself from the deliberation process. Likewise, any member may
decline to participate in the deliberation for any reason or may be removed for just cause upon recommendation to

67
 the NCCA Board by at least two thirds (2/3) of the members; in which case, the National Artist Award Secretariat
shall again select the replacements for those who decline or resigned until the first deliberation panel is completed.

4.9. The list of nominated members of the National Artist Award Council of Experts shall be reviewed by the
National Artist Award Secretariat as needed, for purposes of adding new members or replacements.

4.10. The members of the National Artist Award Council of Experts shall serve for a fixed term of three (3) years.

5. CRITERIA FOR SELECTION

The Order of National Artists shall be given to:

5.1 Living artists who are Filipino citizens at the time of nomination, as well as those who died after the
establishment of the award in 1972 but were Filipino citizens at the time of their death.

5.2 Artists who through the content and form of their works have contributed in building a Filipino sense of
nationhood.

5.3. Artists who have pioneered in a mode of creative expression or style, thus, earning distinction and making an
impact on succeeding generations of artists.

5.4. Artists who have created a substantial and significant body of works and/or consistently displayed excellence in
the practice of their art form thus enriching artistic expression or style.

5.5 Artists who enjoy broad acceptance through:

5.5.1. prestigious national and/or international recognition, such as the Gawad CCP Para sa Sining, CCP
Thirteen Artists Award and NCCA Alab ng Haraya

5.5.2. critical acclaim and/or reviews of their works

5.5.3. respect and esteem from peers.

6. NOMINATION PROCEDURE

6.1. The National Artist Award Secretariat shall announce the opening of nominations through media releases and
letters to qualified organizations.

6.2. Candidates may be nominated under one or more of the following categories:

6.2.1. Dance choreography, direction and/or performance.

6.2.2. Music composition, direction, and/or performance.

6.2.3. Theater direction, performance and/or production design.

6.2.4. Visual Arts painting, sculpture, printmaking, photography, installation art, mixed media works, illustration,
comics/komiks, graphic arts, performance art and/or imaging.

6.2.5. Literature poetry, fiction (short story, novel and play); non-fiction (essay, journalism, literary criticism and
historical literature).

6.2.6. Film and Broadcast Arts direction, writing, production design, cinematography, editing, camera work,
and/or performance.

6.2.7. Architecture, Design and Allied Arts architecture design, interior design, industrial arts design, landscape
architecture and fashion design.

6.3. Nominations for the Order of National Artists may be submitted by government and non-government cultural
organizations and educational institutions, as well as private foundations and councils.

6.4. Members of the Special Research Group, as well as agencies attached to the NCCA and CCP shall not submit
nominations.

6.5. NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are automatically
disqualified from being nominated.

68
 6.6. Nominations shall be accepted only when these are submitted in writing and with proper supporting
documentation, as follows:

6.6.1. A cover letter signed by the head or designated representative of the nominating organization.

The cover letter shall be accompanied by a Board Resolution approving the nominee concerned with the
said resolution signed by the organization President and duly certified by the Board Secretary.

6.6.2. A duly accomplished nomination form;

6.6.3. A detailed curriculum vitae of the nominee;

6.6.4. A list of the nominees significant works categorized according to the criteria;

6.6.5. The latest photograph (color or black and white) of the nominee, either 5" x 7" or 8" x 11";

6.6.6. Pertinent information materials on the nominees significant works (on CDs, VCDs and DVDs);

6.6.7. Copies of published reviews;

6.6.8. Any other document that may be required.

6.7. Nominations received beyond the announced deadline for the submission of nominations shall not be
considered.

6.8. The National Artist Award Secretariat shall announce the opening of nominations through media releases.

6.9. All inquiries and nominations shall be submitted to

The NATIONAL ARTIST AWARD SECRETARIAT

Office of the Artistic Director Cultural Center of the Philippines Roxas Boulevard, 1300 Pasay City or The NATIONAL ARTIST
AWARD SECRETARIAT Office of the Deputy Executive Director National Commission for Culture and the Arts 633 General Luna
Street, Intramuros, Manila

7. SCREENING AND SELECTION PROCESS

7.1. The National Artist Award Secretariat shall pre-screen the nominees based on technical guideline items 5.1, 6.2,
6.3, 6.4, 6.5 and 6.6. The pre-screening shall not be based on the accomplishments and merits of the nominee.

7.2. The Special Research Group shall accomplish its task within six (6) months. The main objective is to verify the
validity of the data, and evaluate the quality, true value and significance of works according to the criteria. It shall
come up with the updated and comprehensive profiles of nominees reflecting their most outstanding achievements.

7.3. The National Artist Award Secretariat will meet to review the list of nominees for oversights. Consequently,
deserving nominees shall be added to the list.

7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary. The panelists shall be grouped
according to their respective fields of expertise or disciplines to shortlist the nominees in their disciplines or
categories for presentation to the second deliberation panel.

7.5. The second deliberation panel shall be composed of a different set of experts from the first deliberation panel
three (3) experts each of the seven (7) areas/discipline and may include members from varying backgrounds such as
critics and academicians. The achievements of each shortlisted nominee shall be presented by one designated
member of Council of Experts. Then panel deliberates and ranks the shortlisted nominees according to the order of
precedence following the set criteria of the Order of National Artists. In extreme cases, the Second Deliberation may
add new names to the lists.

7.6. The second deliberation panel may recommend not to give award in any category if no nominee is found
deserving. The number of awardees shall also depend on the availability of funds. All decisions and
recommendations shall be in writing.

7.7. The recommendations from the Second Deliberation Panel of the National Artist Award Council of Experts
shall then be presented to the joint boards of NCCA and CCP for final selection. The presentors shall prepare their
presentation in writing together with an audio-visual presentation or powerpoint presentation. Written
interpellations/opinions will be accepted from selected critics. The review shall be based on the ranking done by the
Second Deliberation. The voting shall be across disciplines. The National Artists will be given the option whether to
vote on all categories or on his/her particular discipline.

69
 7.8. Proxy votes will not be allowed in the Selection Process. Designation of permanent representatives of agencies
should be made at the outset to make them regular Board members of NCCA and thus, may be allowed to cast votes.

7.9. The list of awardees shall be submitted to the President of the Republic of the Philippines for confirmation,
proclamation and conferral.

8. PRESENTATION OF THE AWARDS

8.1. The Order of National Artists shall not be conferred more frequently than every three (3) years.

8.2. The Order of National Artists shall be conferred by the President of the Philippines on June 11 or any
appropriate date in fitting ceremonies to be organized by the National Artist Secretariat.

8.3. The medallion of the Order of National Artists and citation shall be given to the honoree during the conferment
ceremony. The cash award of P100,000.00 in cheque shall be given immediately after the ceremony or at another
time and place as requested by the honoree.

8.4. A posthumous conferral consisting of the medallion and citation shall be given to the family or legal heir/s of
the honoree. The cash award of P75,000.00 in cheque shall be given to the honorees legal heir/s or a representative
designated by the family immediately after the ceremony or at another time and place as requested by the family.
(Emphases supplied.)

In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the NCCA Executive Director as
Chairperson, the CCP President as Vice-Chairperson, and the NCCA Deputy Executive Director, the CCP Vice-President/Artistic
Director, the NCCA National Artist Award Officer and the CCP National Artist Award Officer as members. They also centralized
with the NCCA all financial resources and management for the administration of the National Artists Award. They added another
layer to the selection process to involve and allow the participation of more members of the arts and culture sector of the Philippines
in the selection of who may be proclaimed a National Artist.

On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors Code of the Philippines to Create an
Order of Precedence of Honors Conferred and for Other Purposes, was issued. The National Artists Award was renamed the Order of
National Artists and raised to the level of a Cultural Order, fourth in precedence among the orders and decorations that comprise the
Honors of the Philippines. Executive Order No. 236, s. 2003, recognizes the vital role of the NCCA and the CCP in identifying
Filipinos who have made distinct contributions to arts and letters and states that the National Artist recognition is conferred "upon the
recommendation of the Cultural Center of the Philippines and the National Commission for Culture and the Arts." 12 Executive Order
No. 236, s. 2003, further created a Committee on Honors to "assist the President in evaluating nominations for recipients of
Honors,"13 including the Order of National Artists, and presidential awards. The Committee on Honors has been allowed to "authorize
relevant department or government agencies to maintain Honors and/or Awards Committees to process nominations for Honors and/or
Presidential Awards."14In this connection, Section 2.4(A) of the Implementing Rules and Regulations 15 of Executive Order No. 236, s.
2003, states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various awards committees in the various units of
the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on Honors via the Chancellery of Philippine
Orders and State Decorations. The Chancellery shall process nominations for the consideration of the Committee on Honors. The
Committee on Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that nominations received from the
various awards committees meet two tests: that there has not been an abuse of discretion in making the nomination, and that the

70
nominee is in good standing. Should a nomination meet these criteria, a recommendation to the President for conferment shall be
made.

The President of the Philippines takes the recommendations of the Committee on Honors in the highest consideration when making
the final decision on the conferment of awards. (Emphasis supplied.)

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No. 236 Entitled "Establishing the Honors
Code of the Philippines to Create an Order of Precedence of Honors Conferred and for Other Purposes" was subsequently issued on
June 8, 2005. It amended the wording of Executive Order No. 236, s. 2003, on the Order of National Artists and clarified that the
NCCA and the CCP "shall advise the President on the conferment of the Order of National Artists."

Controversy Surrounding the 2009

Order of National Artists

Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of Commissioners and the CCP Board of Trustees
was held to discuss, among others, the evaluation of the 2009 Order of National Artists and the convening of the National Artist
Award Secretariat. The nomination period was set for September 2007 to December 31, 2007, which was later extended to February
28, 2008. The pre-screening of nominations was held from January to March 2008. 16

On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered during the deliberation and a
preliminary shortlist19 of 32 names was compiled.

On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new set of Council of Experts met and
shortlisted 13 out of the 32 names in the preliminary shortlist. 20 On May 6, 2009, the final deliberation was conducted by the 30-
member Final Deliberation Panel comprised of the CCP Board of Trustees and the NCCA Board of Commissioners and the living
National Artists.21 From the 13 names in the second shortlist, a final list of four names was agreed upon. 22 The final list, according to
rank, follows:

Name Art Field/Category Number of Votes

Manuel Conde (+) Film and Broadcast Arts (Film) 26
Ramon Santos Music 19
Lazaro Francisco (+) Literature 15
Federico Aguilar-Alcuaz Visual Arts 15

On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary Vilma Labrador, and the President and
Artistic Director of the CCP, Mr. Nestor Jardin, was sent to the President. 23 The letter stated, thus:

May 6, 2009

Her Excellency GLORIA MACAPAGAL-ARROYO

President of the Philippines
Malacaan Palace, Manila

Subject: 2009 Order of National Artist Awardees

Dear President Arroyo:

We are respectfully submitting a recommendation of the NCCA Board of Trustees and CCP Board of Trustees for the Proclamation of
the following as 2009 Order of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) Film and Broadcast Arts

2. Dr. RAMON SANTOS Music

3. Mr. LAZARO FRANCISCO+ (Posthumous) Literature

4. Mr. FEDERICO AGUILAR-ALCUAZ Visual Arts

The above persons were identified by experts in the various fields of arts and culture, including living National Artists. An intensive
selection process was observed following established practice. In the past, awards were presented by the President at a Ceremony held
at the Malacaan Palace followed by a program called "Parangal" at the Cultural Center of the Philippines. We also propose to
continue with past practice of celebrating the life and works of the four (4) Order of National Artists through an exhibit that will open
and a commemorative publication that will be released on the day of the proclamation.

We respectfully suggest, subject to Her Excellencys availability, that the Proclamation be on June 11, 2009, if possible at the
Malacaan Palace.

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Thank you for your kind attention.

Very respectfully yours,

(Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts

(Sgd.)
NESTOR O. JARDIN
President and Artistic Director
Cultural Center of the Philippines24

According to respondents, the aforementioned letter was referred by the Office of the President to the Committee on Honors.
Meanwhile, the Office of the President allegedly received nominations from various sectors, cultural groups and individuals strongly
endorsing private respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Maosa and Jose Moreno. The
Committee on Honors purportedly processed these nominations and invited resource persons to validate the qualifications and
credentials of the nominees.25

The Committee on Honors thereafter submitted a memorandum to then President Gloria Macapagal-Arroyo recommending the
conferment of the Order of National Artists on the four recommendees of the NCCA and the CCP Boards, as well as on private
respondents Guidote-Alvarez, Caparas, Maosa and Moreno. Acting on this recommendation, Proclamation No. 1823 declaring
Manuel Conde a National Artist was issued on June 30, 2009. Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were
issued declaring Lazaro Francisco, Federico AguilarAlcuaz and private respondents Guidote-Alvarez, Caparas, Maosa and Moreno,
respectively, as National Artists. This was subsequently announced to the public by then Executive Secretary Eduardo Ermita on July
29, 2009.26

Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and the CCP Board of Trustees to select
those who will be conferred the Order of National Artists and to set the standard for entry into that select group, petitioners instituted
this petition for prohibition, certiorari and injunction (with prayer for restraining order) praying that the Order of National Artists be
conferred on Dr. Santos and that the conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Maosa
and Moreno be enjoined and declared to have been rendered in grave abuse of discretion. 27

In a Resolution28 dated August 25, 2009, the Court issued a status quo order 29 enjoining "public respondents" "from conferring the
rank and title of the Order of National Artists on private respondents; from releasing the cash awards that accompany such conferment
and recognition; and from holding the acknowledgment ceremonies for recognition of the private respondents as National Artists."

What is the nature and scope of the power of the President to confer the Order of the National Artists and how should it be exercised?
This is the essential issue presented in this case. It will determine whether the proclamation of respondents as National Artists is valid.
Preliminary procedural issues on the standing of the petitioners and the propriety of the remedies taken, 30 however, call for resolution
as a prerequisite to the discussion of the main question.

Contention of the Parties

A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation of at least three groups, the National
Artists, cultural workers and academics, and the Concerned Artists of the Philippines (CAP). The National Artists assert an "actual as
well as legal interest in maintaining the reputation of the Order of National Artists."31 In particular, they invoke their right to due
process not to have the honor they have been conferred with diminished by the irregular and questionable conferment of the award on
respondents Guidote-Alvarez, Caparas, Maosa and Moreno. For petitioners, this would adversely affect their right to live a
meaningful life as it detracts not only from their right to enjoy their honor as a fruit of their lifelong labor but also from the respect of
their peers.32

The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned with the preservation of the countrys rich
cultural and artistic heritage. As taxpayers, they are concerned about the use of public monies for illegal appointments or spurious acts
of discretion.33

All of the petitioners claim that former President Macapagal-Arroyo gravely abused her discretion in disregarding the results of the
rigorous screening and selection process for the Order of National Artists and in substituting her own choice for those of the
Deliberation Panels. According to petitioners, the Presidents discretion to name National Artists is not absolute but limited. In
particular, her discretion on the matter cannot be exercised in the absence of or against the recommendation of the NCCA and the
CCP. In adding the names of respondents Caparas, Guidote-Alvarez, Maosa and Moreno while dropping Dr. Santos from the list of
conferees, the Presidents own choices constituted the majority of the awardees in utter disregard of the choices of the NCCA and the
CCP and the arts and culture community which were arrived at after a long and rigorous process of screening and deliberation.
Moreover, the name of Dr. Santos as National Artist for Music was deleted from the final list submitted by the NCCA and the CCP
Boards without clearly indicating the basis thereof. For petitioners, the Presidents discretion to name National Artists cannot be
exercised to defeat the recommendations made by the CCP and NCCA Boards after a long and rigorous screening process and with
the benefit of expertise and experience. The addition of four names to the final list submitted by the Boards of the CCP and the NCCA
and the deletion of one name from the said list constituted a substitution of judgment by the President and a unilateral reconsideration
without clear justification of the decision of the First, Second and Final Deliberation Panels composed of experts. 34

72
Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and unethical because, as the then Executive
Director of the NCCA and presidential adviser on culture and arts, she was disqualified from even being nominated. 35 Moreover, such
action on the part of the former President constituted grave abuse of discretion as it gave preferential treatment to respondent Guidote-
Alvarez by naming the latter a National Artist despite her not having been nominated and, thus, not subjected to the screening process
provided by the rules for selection to the Order of National Artists. Her inclusion in the list by the President represented a clear and
manifest favor given by the President in that she was exempted from the process that all other artists have to undergo. According to
petitioners, it may be said that the President used a different procedure to qualify respondent Guidote-Alvarez. This was clearly grave
abuse of discretion for being manifest and undue bias violative of the equal protection clause. 36

Respondent Caparas refutes the contention of the petitioning National Artists and insists that there could be no prejudice to the latter.
They remain to be National Artists and continue to receive the emoluments, benefits and other privileges pertaining to them by virtue
of that honor. On the other hand, all the other petitioners failed to show any material and personal injury or harm caused to them by
the conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The rule on standing
may not be relaxed in favor of the petitioners as no question of constitutionality has been raised and no issue of transcendental
importance is involved.37

Respondent Caparas further argues that the remedies of prohibition and injunction are improper as the act sought to be enjoined the
declaration of respondents Guidote-Alvarez, Caparas, Maosa and Moreno as National Artists had already been consummated. In
particular, respondent Caparas was already proclaimed National Artist through Proclamation No. 1827 issued on July 6, 2009. 38

On the merits, respondent Caparas contends that no grave abuse of discretion attended his proclamation as National Artist. The former
President considered the respective recommendations of the NCCA and the CCP Boards and of the Committee on Honors in
eventually declaring him (Caparas) as National Artist. The function of the NCCA and the CCP Boards is simply to advise the
President. The award of the Order of National Artists is the exclusive prerogative of the President who is not bound in any way by the
recommendation of the NCCA and the CCP Boards. The implementing rules and regulations or guidelines of the NCCA cannot
restrict or limit the exclusive power of the President to select the recipients of the Order of National Artists. 39

For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that she was waiving her right to file her
comment on the petition and submitted herself to the Courts discretion and wisdom.

Respondent Maosa manifested that his creations speak for themselves as his contribution to Filipino cultural heritage and his
worthiness to receive the award. Nonetheless, he expressed his conviction that the Order of National Artists is not a right but a
privilege that he would willingly relinquish should he be found not worthy of it. 41

Respondent Moreno did not file any pleading despite being given several opportunities to do so. Hence, the Court dispensed with his
pleadings.42

In a Resolution dated July 12, 2011, this Court gave due course to the petition and required the parties to file their respective
memoranda.43 Respondent Caparas filed his memorandum on September 8, 2011,44 the CCP filed its memorandum on September 19,
2011,45 respondent Maosa on September 20, 2011,46 and the Office of the Solicitor General filed a manifestation stating that it is
adopting its comment as its memorandum on September 21, 2011.47 Respondent Moreno failed to file a Memorandum, hence, the
Court resolved to dispense with the same.48 Petitioners filed their Memorandum on May 14, 2012. 49

On the other hand, the original position of the Office of the Solicitor General (OSG) was similar to that of respondent Caparas. 50 In a
subsequent manifestation,51 however, the OSG stated that the current Board of Commissioners of the NCCA agree with the petitioners
that the President cannot honor as a National Artist one who was not recommended by the joint Boards of the NCCA and the CCP.
The implementing rules and regulations of Executive Order No. 236, s. 2003, recognized the binding character of the recommendation
of the NCCA and the CCP Boards and limited the authority of the Committee on Honors to the determination that (1) there has been
no grave abuse of discretion on the part of the NCCA and the CCP Boards in making the nomination, and (2) the nominee is in good
standing. Where a nomination meets the said two criteria, a recommendation to the President to confer the award shall be made.52

The OSG further argued that, while the President exercises control over the NCCA and the CCP, the President has the duty to
faithfully execute the laws, including the NCCA-CCP guidelines for selection of National Artists and the implementing rules of
Executive Order No. 236, s. 2003. Moreover, the laws recognize the expertise of the NCCA and the CCP in the arts and tasked them
to screen and select the artists to be conferred the Order of National Artists. Their mandate is clear and exclusive as no other agency
possesses such expertise.53

The OSG also assailed the former Presidents choice of respondent Guidote-Alvarez for being contrary to Republic Act No.
7356.54 Section 11 of the said law provides:

Sec. 11. Membership Restrictions. During his/her term as member of the Commission, a Commissioner shall not be eligible for any
grant, or such other financial aid from the Commission as an individual: Provided, however, That he/she may compete for grants and
awards on the same level as other artists one (1) year after his/her term shall have expired.

The omission of the word "award" in the first portion of the above provision appears to be unintentional as shown by the proviso
which states that a member may compete for grants and awards only one year after his or her term shall have expired. As such,
respondent Guidote-Alvarez is restricted and disqualified from being conferred the 2009 Order of National Artists. 55

The Courts Ruling

Standing of the Petitioners

73
Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.56 The gist
of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions.57

The parties who assail the constitutionality or legality of a statute or an official act must have a direct and personal interest. They must
show not only that the law or any governmental act is invalid, but also that they sustained or are in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that they suffer thereby in some indefinite way. They must show that
they have been or are about to be denied some right or privilege to which they are lawfully entitled or that they are about to be
subjected to some burdens or penalties by reason of the statute or act complained of. 58

In this case, we find that the petitioning National Artists will be denied some right or privilege to which they are entitled as members
of the Order of National Artists as a result of the conferment of the award on respondents Guidote-Alvarez, Caparas, Maosa and
Moreno. In particular, they will be denied the privilege of exclusive membership in the Order of National Artists.

In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National Artists is "an exclusive association of
honored individuals." To ensure the exclusivity of the membership in the Order, a rigid nomination and screening process has been
established with different sets of renowned artists and respected art critics invited to sit as the Council of Experts for the First and
Second Deliberation Panels. Moreover, all living National Artists are given a voice on who should be included in their exclusive club
as they automatically become members of the Final Deliberation Panel that will vote on who should be included in the final list to be
submitted to the President for conferment of the Order of National Artists. To allow the untrammeled discretion and authority of the
President to confer the Order of National Artists without regard to the stringent screening and rigorous selection process established
by the NCCA and the CCP will diminish, if not negate, the exclusive nature of the said Order. It will unduly subject the selection and
conferment of the Order of National Artists to politics rather than to principles and procedures. It will subvert the transparent and
rigorous process and allow entry to the exclusive Order of National Artists through a secret backdoor of lobbying, back channeling
and political accommodation.

Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and substantial interest. Like respondents Caparas,
Maosa and Moreno, he was among the 87 nominees for the 2009 Order of National Artists. Like respondent Moreno, he made it to
the preliminary shortlist. As he did not make it to the second shortlist, he was not considered by the Final Deliberation Panel, more so
by the former President.

It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated for being the Executive Director of the
NCCA at that time while respondents Maosa and Caparas did not make it to the preliminary shortlist and respondent Moreno was not
included in the second shortlist. Yet, the four of them were treated differently and considered favorably when they were exempted
from the rigorous screening process of the NCCA and the CCP and conferred the Order of National Artists. The Committee on Honors
and the former President effectively treated respondents Guidote-Alvarez, Caparas, Maosa and Moreno as a preferred class. The
special treatment accorded to respondents Guidote-Alvarez, Caparas, Maosa and Moreno fails to pass rational scrutiny. 60 No real and
substantial distinction between respondents and petitioner Abad has been shown that would justify deviating from the laws, guidelines
and established procedures, and placing respondents in an exceptional position. The undue classification was not germane to the
purpose of the law. Instead, it contradicted the law and well-established guidelines, rules and regulations meant to carry the law into
effect. While petitioner Abad cannot claim entitlement to the Order of National Artists, 61 he is entitled to be given an equal
opportunity to vie for that honor. In view of the foregoing, there was a violation of petitioner Abads right to equal protection, an
interest that is substantial enough to confer him standing in this case.

As regards the other concerned artists and academics as well as the CAP, their claim of deep concern for the preservation of the
countrys rich cultural and artistic heritage, while laudable, falls short of the injury in fact requirement of standing. Their assertion
constitutes a generalized grievance shared in a substantially equal measure by all or a large class of citizens. 62 Nor can they take refuge
in their status as taxpayers as the case does not involve any illegal appropriation or taxation. A taxpayers suit is proper only when
there is an exercise of the spending or taxing power of the Congress. 63

Nonetheless, as a reading of the petition shows that it has advanced an issue which deserves the attention of this Court in view of its
seriousness, novelty and weight as precedent, it behooves the Court to relax the rules on standing and to resolve the issue presented
before it.64 Moreover, this issue is of paramount interest,65 which further justifies a liberal stance on standing.

Propriety of the Remedies

The present action is a petition for prohibition, certiorari, injunction, restraining order and all other legal, just and equitable reliefs.

It has been held that the remedies of prohibition and injunction are preventive and, as such, cannot be availed of to restrain an act that
is already fait accompli.66 Where the act sought to be prohibited or enjoined has already been accomplished or consummated,
prohibition or injunction becomes moot.67

Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits for the future guidance of both bench
and bar. Courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review." 68

It is an opportune time for the Court to assert its role as republican schoolmaster, 69 a teacher in a vital national seminar.70 There are
times when the controversy is of such character that, to prevent its recurrence and to assure respect for constitutional limitations, this
Court must pass on the merits of a case.71 This is one such case. More than being a teaching moment, this is not the first time that the
Order of National Artists was conferred in the manner that is being assailed in this case. 72 If not addressed here and now, there is great
probability that the central question involved in this case will haunt us again in the future. Every President may invoke absolute
74
presidential prerogative and thrust upon us National Artists after his or her own heart, in total disregard of the advise of the CCP and
the NCCA and the voice of the community of artists, resulting to repeated episodes of indignation and uproar from the artists and the
public.

Furthermore, if not corrected, such an act would give rise to mischief and dangerous precedent whereby those in the corridors of
power could avoid judicial intervention and review by merely speedily and stealthily completing the commission of an illegality.73

In any event, the present petition is also for certiorari and there is no procedural bar for the Court to pass upon the question of whether
the proclamations of respondents Guidote-Alvarez, Caparas, Maosa and Moreno as National Artists were attended by grave abuse of
presidential discretion.

Limits of the Presidents Discretion

The respective powers of the CCP Board of Trustees and of the NCCA Board of Commissioners with respect to the conferment of the
Order of National Artists are clear. They jointly administer the said award and, upon their recommendation or advice, the President
confers the Order of National Artists.

To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or counsel."74 To "advise" is "to give an opinion or
counsel, or recommend a plan or course of action; also to give notice. To encourage, inform or acquaint." 75 "Advise" imports that it is
discretionary or optional with the person addressed whether he will act on such advice or not. 76 This has been clearly explained in
Cojuangco, Jr. v. Atty. Palma77:

The "power to recommend" includes the power to give "advice, exhortation or indorsement, which is essentially persuasive in
character, not binding upon the party to whom it is made." (Emphasis supplied.)

Thus, in the matter of the conferment of the Order of National Artists, the President may or may not adopt the recommendation or
advice of the NCCA and the CCP Boards. In other words, the advice of the NCCA and the CCP is subject to the Presidents
discretion.

Nevertheless, the Presidents discretion on the matter is not totally unfettered, nor the role of the NCCA and the CCP Boards
meaningless.

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic
formulation, "discretion is not unconfined and vagrant" but "canalized within banks that keep it from overflowing." 78

The Presidents power must be exercised in accordance with existing laws. Section 17, Article VII of the Constitution prescribes
faithful execution of the laws by the President:

Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied.)

The Presidents discretion in the conferment of the Order of National Artists should be exercised in accordance with the duty to
faithfully execute the relevant laws. The faithful execution clause is best construed as an obligation imposed on the President, not a
separate grant of power.79 It simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above
the laws but is obliged to obey and execute them.80 This is precisely why the law provides that "administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws or the Constitution." 81

In this connection, the powers granted to the NCCA and the CCP Boards in connection with the conferment of the Order of National
Artists by executive issuances were institutionalized by two laws, namely, Presidential Decree No. 208 dated June 7, 1973 and
Republic Act No. 7356. In particular, Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as the National Artists
Awards Committee and tasked it to "administer the conferment of the category of National Artist" upon deserving Filipino artists with
the mandate to "draft the rules to guide its deliberations in the choice of National Artists":

Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National Artist, is hereby amended by creating a
National Artists Awards Committee, hereinafter to administer the conferment of the category of National Artist upon those deserving
thereof. The Committee, which shall be composed of members of the Board of Trustees of the Cultural Center of the Philippines, shall
organize itself immediately and shall draft the rules to guide its deliberations in the choice of National Artists, to the end that those
who have created a body of work in the arts and in letters capable of withstanding the test of time will be so recognized. (Emphases
supplied.)

The authority of the CCP Board of Trustees as National Artists Awards Committee was reiterated in Presidential Decree No. 208
dated June 7, 1973.

The function of the CCP Board of Trustees as National Artists Awards Committee has been recognized under Republic Act No. 7356:

Sec. 18. The National Cultural Agencies. The [NCCA] shall coordinate with the national cultural agencies including but not limited
to the Cultural Center of the Philippines, the Institute of Philippine Languages, the National Historical Institute, the National Library,
the National Museum, the Records Management and Archives Office. However, they shall continue operating under their respective
charters or as provided by law where provisions therein are not inconsistent with the provisions of this Act. They shall serve as the

75
national repository and/or showcase, as the case may be, of the best of Philippine culture and arts. For this purpose, these agencies
shall submit periodic reports, including recommendations to the [NCCA]. (Emphasis supplied.)

On the other hand, the NCCA has been given the following mandate in connection with the conferment of cultural or arts awards:

Sec. 12. Mandate. The Commission is hereby mandated to formulate and implement policies and plans in accordance with the
principles stated in Title 1 of this Act.

(a) To encourage the continuing and balanced development of a pluralistic culture by the people themselves, it shall:

xxxx

(4) extend recognition of artistic achievement through awards, grants and services to artists and cultural groups which
contribute significantly to the Filipinos cultural legacy;

xxxx

Sec. 13. Powers and Functions. To carry out its mandate, the Commission shall exercise the following powers and
functions:

xxxx

(j) advise the President on matters pertaining to culture and the arts, including the creation of a special decoration or award,
for persons who have significantly contributed to the development and promotion of Philippine culture and arts;

(k) promulgate rules, regulations and undertake any and all measures as may be necessary to implement this Act. (Emphases
supplied.)

By virtue of their respective statutory mandates in connection with the conferment of the National Artist Award, the NCCA and the
CCP decided to work together and jointly administer the National Artist Award. They reviewed the guidelines for the nomination,
selection and administration of the National Artist Award, created a National Artist Award Secretariat, centralized all financial
resources and management for the administration of the National Artist Award, and added another layer to the selection process so
that more members of the arts and culture sector of the Philippines may be involved and participate in the selection of National Artists.

We have held that an administrative regulation adopted pursuant to law has the force and effect of law.82 Thus, the rules, guidelines
and policies regarding the Order of National Artists jointly issued by the CCP Board of Trustees and the NCCA pursuant to their
respective statutory mandates have the force and effect of law. Until set aside, they are binding upon executive and administrative
agencies,83 including the President himself/herself as chief executor of laws. In this connection, Section 2.5(A) of the Implementing
Rules and Regulations84 of Executive Order No. 236, s. 2003 provides:

2.5: General Guidelines for Awards Committees

A. National Orders of Cultural and Scientific Merit

The existing modalities of the NCCA for selecting recipients for the Order of National Artists, and the Gawad sa Manlilikha ng
Bayan, and of the NAST for selecting recipients of the Order of National Scientists, shall remain in force. (Emphases supplied.)

Section 2.4(A) of the same implementing rules further states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various awards committees in the various units of
the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

76
 Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on Honors via the Chancellery of Philippine
Orders and State Decorations. The Chancellery shall process nominations for the consideration of the Committee on Honors. The
Committee on Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that nominations received from the
various awards committees meet two tests: that there has not been an abuse of discretion in making the nomination, and that the
nominee is in good standing. Should a nomination meet these criteria, a recommendation to the President for conferment shall be
made.

The President of the Philippines takes the recommendations of the Committee on Honors in the highest consideration when making
the final decision on the conferment of awards. (Emphasis supplied.)

Pursuant to the above provision of the implementing rules of Executive Order No. 236, s. 2003, the authority of the Committee on
Honors is limited to determining whether the nominations submitted by a particular awards committee, in this case, the joint NCCA
and CCP Boards, have been tainted by abuse of discretion, and whether the nominees are in good standing. Should the nominations
meet these two criteria, the Committee on Honors shall make a recommendation to the President for conferment of the Order of
National Artists.

In view of the various stages of deliberation in the selection process and as a consequence of his/her duty to faithfully enforce the
relevant laws, the discretion of the President in the matter of the Order of National Artists is confined to the names submitted to
him/her by the NCCA and the CCP Boards. This means that the President could not have considered conferment of the Order of
National Artists on any person not considered and recommended by the NCCA and the CCP Boards. That is the proper import of the
provision of Executive Order No. 435, s. 2005, that the NCCA and the CCP "shall advise the President on the conferment of the Order
of National Artists." Applying this to the instant case, the former President could not have properly considered respondents Guidote-
Alvarez, Caparas, Maosa and Moreno, as their names were not recommended by the NCCA and the CCP Boards. Otherwise, not
only will the stringent selection and meticulous screening process be rendered futile, the respective mandates of the NCCA and the
CCP Board of Trustees under relevant laws to administer the conferment of Order of National Artists, draft the rules and regulations to
guide its deliberations, formulate and implement policies and plans, and undertake any and all necessary measures in that regard will
also become meaningless.

Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of the NCCA at that time, the Guidelines
expressly provides:

6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are automatically disqualified from being
nominated.85

Respondent Guidote-Alvarez could not have even been nominated, hence, she was not qualified to be considered and conferred the
Order of National Artists at that time. The Presidents discretion on the matter does not extend to removing a legal impediment or
overriding a legal restriction.

From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to the conferment of the Order of National
Artists on Conde, Dr. Santos, Francisco and Alcuaz was not binding on the former President but only discretionary or optional for her
whether or not to act on such advice or recommendation. Also, by virtue of the power of control, the President had the authority to
alter or modify or nullify or set aside such recommendation or advice. It was well within the Presidents power and discretion to
proclaim all, or some or even none of the recommendees of the CCP and the NCCA Boards, without having to justify his or her
action. Thus, the exclusion of Santos did not constitute grave abuse of discretion on the part of the former President.

The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Maosa and Moreno was an entirely
different matter.

There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed
whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias. 86

There was a violation of the equal protection clause of the Constitution87 when the former President gave preferential treatment to
respondents Guidote-Alvarez, Caparas, Maosa and Moreno.1wphi1 The former Presidents constitutional duty to faithfully execute
the laws and observe the rules, guidelines and policies of the NCCA and the CCP as to the selection of the nominees for conferment of
the Order of National Artists proscribed her from having a free and uninhibited hand in the conferment of the said award. The manifest
disregard of the rules, guidelines and processes of the NCCA and the CCP was an arbitrary act that unduly favored respondents
Guidote-Alvarez, Caparas, Maosa and Moreno. The conferment of the Order of National Artists on said respondents was therefore
made with grave abuse of discretion and should be set aside.

While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas, Maosa and Moreno as National
Artists, such action should not be taken as a pronouncement on whether they are worthy to be conferred that honor. Only the
President, upon the advise of the NCCA and the CCP Boards, may determine that. The Court simply declares that, as the former
President committed grave abuse of discretion in issuing Proclamation Nos. 1826 to 1829 dated July 6, 2009, the said proclamations
are invalid. However, nothing in this Decision should be read as a disqualification on the part of respondents Guidote-Alvarez,
Caparas, Maosa and Moreno to be considered for the honor of National Artist in the future, subject to compliance with the laws, rules
and regulations governing said award.

77
WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829 dated July 6, 2009 proclaiming
respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Maosa, and Jose Moreno, respectively, as National
Artists are declared INVALID and

SET ASIDE for having been issued with grave abuse of discretion.

SO ORDERED.

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 G.R. No. 202666, September 29, 2014

RHONDA AVE S. VIVARES AND SPS. MARGARITA AND DAVID SUZARA, Petitioners, v. ST. THERESAS COLLEGE,
MYLENE RHEZA T. ESCUDERO, AND JOHN DOES, Respondents.

DECISION

VELASCO JR., J.:

The individuals desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus each individual
is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and
communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

~ Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section 19 of A.M. No. 08-1-16-
SC,1 otherwise known as the Rule on the Writ of Habeas Data. Petitioners herein assail the July 27, 2012 Decision 2 of the Regional
Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period material, graduating high
school students at St. Theresas College (STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach
party they were about to attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in their
undergarments. These pictures were then uploaded by Angela Lindsay Tan (Angela) on her Facebook 3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STCs high school department, learned from her
students that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in brassieres. Escudero
then asked her students if they knew who the girls in the photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes
Taboada (Chloe), among others.

Using STCs computers, Escuderos students logged in to their respective personal Facebook accounts and showed her photos of the
identified students, which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and
Julienne along the streets of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres. What is more,
Escuderos students claimed that there were times when access to or the availability of the identified students photos was not
confined to the girls Facebook friends,4 but were, in fact, viewable by any Facebook user. 5cralawlawlibrary

Upon discovery, Escudero reported the matter and, through one of her students Facebook page, showed the photos to Kristine Rose
Tigol (Tigol), STCs Discipline-in-Charge, for appropriate action. Thereafter, following an investigation, STC found the identified
students to have deported themselves in a manner proscribed by the schools Student Handbook, to wit:chanRoblesvirtualLawlibrary

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholic beverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages, language or symbols;
and
6. Posing and uploading pictures on the Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as required, to the office of Sr.
Celeste Ma. Purisima Pe (Sr. Purisima), STCs high school principal and ICM 6 Directress. They claimed that during the meeting, they
were castigated and verbally abused by the STC officials present in the conference, including Assistant Principal Mussolini S. Yap
(Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of their penalty,
they are barred from joining the commencement exercises scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angelas mother, Dr. Armenia M. Tan (Tan), filed a Petition for Injunction and
Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-38594.7 In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded Angela from joining the commencement exercises. On March 25,
2012, petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an intervenor.

On March 28, 2012, defendants in Civil Case No. CEB-38594 filed their memorandum, containing printed copies of the photographs
in issue as annexes. That same day, the RTC issued a temporary restraining order (TRO) allowing the students to attend the graduation
ceremony, to which STC filed a motion for reconsideration.

Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned students from participating in the graduation rites, arguing
that, on the date of the commencement exercises, its adverted motion for reconsideration on the issuance of the TRO remained
unresolved.

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Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed as SP. Proc. No. 19251-
CEB8 on the basis of the following considerations:chanRoblesvirtualLawlibrary

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they changed into their
swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their childrens Facebook accounts was set at Friends Only. They, thus, have a reasonable
expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or ought to have known of laws that safeguard the right to
privacy. Corollarily, respondents knew or ought to have known that the girls, whose privacy has been invaded, are the victims
in this case, and not the offenders. Worse, after viewing the photos, the minors were called immoral and were punished
outright;
4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their consent. Escudero, however,
violated their rights by saving digital copies of the photos and by subsequently showing them to STCs officials. Thus, the
Facebook accounts of petitioners children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images happened at STCs
Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by respondents through their memorandum
submitted to the RTC in connection with Civil Case No. CEB-38594.

To petitioners, the interplay of the foregoing constitutes an invasion of their childrens privacy and, thus, prayed that: (a) a writ
of habeas data be issued; (b) respondents be ordered to surrender and deposit with the court all soft and printed copies of the subject
data before or at the preliminary hearing; and (c) after trial, judgment be rendered declaring all information, data, and digital images
accessed, saved or stored, reproduced, spread and used, to have been illegally obtained in violation of the childrens right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued the writ of habeas data.
Through the same Order, herein respondents were directed to file their verified written return, together with the supporting affidavits,
within five (5) working days from service of the writ.

In time, respondents complied with the RTCs directive and filed their verified written return, laying down the following grounds for
the denial of the petition, viz: (a) petitioners are not the proper parties to file the petition; (b) petitioners are engaging in forum
shopping; (c) the instant case is not one where a writ of habeas data may issue; and (d) there can be no violation of their right to
privacy as there is no reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive portion of the Decision
pertinently states:chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the minors right to privacy, one of
the preconditions for the issuance of the writ of habeas data. Moreover, the court a quo held that the photos, having been uploaded on
Facebook without restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted, STC gathered the
photographs through legal means and for a legal purpose, that is, the implementation of the schools policies and rules on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule on Habeas
Data.10cralawlawlibrary

The Issues

The main issue to be threshed out in this case is whether or not a writ of habeas data should be issued given the factual milieu. Crucial
in resolving the controversy, however, is the pivotal point of whether or not there was indeed an actual or threatened violation of the
right to privacy in the life, liberty, or security of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the

availability of the Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened
by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting
or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. 11 It is an independent
and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to
provide a forum to enforce ones right to the truth and to informational privacy. It seeks to protect a persons right to control
80
information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order
to achieve unlawful ends.12cralawlawlibrary

In developing the writ of habeas data, the Court aimed to protect an individuals right to informational privacy, among others. A
comparative law scholar has, in fact, defined habeas data as a procedure designed to safeguard individual freedom from abuse in the
information age.13 The writ, however, will not issue on the basis merely of an alleged unauthorized access to information about a
person. Availment of the writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life,
liberty or security on the other.14 Thus, the existence of a persons right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15cralawlawlibrary

Without an actionable entitlement in the first place to the right to informational privacy, a habeas data petition will not prosper.
Viewed from the perspective of the case at bar, this requisite begs this question: given the nature of an online social network (OSN)
(1) that it facilitates and promotes real-time interaction among millions, if not billions, of users, sans the spatial barriers,16 bridging the
gap created by physical space; and (2) that any information uploaded in OSNs leaves an indelible trace in the providers databases,
which are outside the control of the end-usersis there a right to informational privacy in OSN activities of its users? Before
addressing this point, We must first resolve the procedural issues in this case.

The writ of habeas data is not only confined to

cases of extralegal killings and enforced disappearancesContrary to respondents submission, the Writ of Habeas Data was not
enacted solely for the purpose of complementing the Writ of Amparo in cases of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:chanRoblesvirtualLawlibrary

Sec. 2. Who May File. Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings
and enforced disappearances, the petition may be filed by:chanRoblesvirtualLawlibrary

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings or enforced
disappearances, the above underscored portion of Section 2, reflecting a variance of habeas data situations, would not have been
made.

Habeas data, to stress, was designed to safeguard individual freedom from abuse in the information age.17 As such, it is erroneous
to limit its applicability to extralegal killings and enforced disappearances only. In fact, the annotations to the Rule prepared by the
Committee on the Revision of the Rules of Court, after explaining that the Writ of Habeas Data complements the Writ of Amparo,
pointed out that:chanRoblesvirtualLawlibrary

The writ of habeas data, however, can be availed of as an independent remedy to enforce ones right to privacy, more
specifically the right to informational privacy. The remedies against the violation of such right can include the updating,
rectification, suppression or destruction of the database or information or files in possession or in control of respondents. 18 (emphasis
Ours)

Clearly then, the privilege of the Writ of Habeas Data may also be availed of in cases outside of extralegal killings and enforced
disappearances.

Meaning of engaged in the gathering,

collecting or storing of data or informationRespondents contention that the habeas data writ may not issue against STC, it not
being an entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party, while valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against abuses of a person or
entity engaged in the business of gathering, storing, and collecting of data. As provided under Section 1 of the
Rule:chanRoblesvirtualLawlibrary

Section 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence
of the aggrieved party. (emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against
unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data
about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the
business of collecting or storing data.

To engage in something is different from undertaking a business endeavour. To engage means to do or take part in
something.19 It does not necessarily mean that the activity must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the aggrieved party or his or her family. Whether such
undertaking carries the element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for any
other reason or even for no reason at all, is immaterial and such will not prevent the writ from getting to said person or entity.

81
To agree with respondents above argument, would mean unduly limiting the reach of the writ to a very small group, i.e., private
persons and entities whose business is data gathering and storage, and in the process decreasing the effectiveness of the writ as an
instrument designed to protect a right which is easily violated in view of rapid advancements in the information and communications
technologya right which a great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

The Right to Informational Privacy

The concept of privacy has, through time, greatly evolved, with technological advancements having an influential part therein. This
evolution was briefly recounted in former Chief Justice Reynato S. Punos speech, The Common Right to Privacy,20 where he
explained the three strands of the right to privacy, viz: (1) locational or situational privacy; 21 (2) informational privacy; and (3)
decisional privacy.22 Of the three, what is relevant to the case at bar is the right to informational privacyusually defined as the
right of individuals to control information about themselves.23cralawlawlibrary

With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each systems
inherent vulnerability to attacks and intrusions, there is more reason that every individuals right to control said flow of information
should be protected and that each individual should have at least a reasonable expectation of privacy in cyberspace. Several
commentators regarding privacy and social networking sites, however, all agree that given the millions of OSN users, [i]n this [Social
Networking] environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better
known as wishful thinking.24cralawlawlibrary

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would allow a summary hearing of the
unlawful use of data or information and to remedy possible violations of the right to privacy. 25 In the same vein, the South African
High Court, in its Decision in the landmark case, H v. W,26 promulgated on January 30, 2013, recognized that [t]he law has to take
into account the changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. x x
x It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom. Consistent with this,
the Court, by developing what may be viewed as the Philippine model of the writ of habeas data, in effect, recognized that, generally
speaking, having an expectation of informational privacy is not necessarily incompatible with engaging in cyberspace
activities, including those that occur in OSNs.

The question now though is up to what extent is the right to privacy protected in OSNs? Bear in mind that informational privacy
involves personal information. At the same time, the very purpose of OSNs is socializingsharing a myriad of information,27 some of
which would have otherwise remained personal.

Facebooks Privacy Tools: a response to

the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other members of the same or
different social media platform through the sharing of statuses, photos, videos, among others, depending on the services provided by
the site. It is akin to having a room filled with millions of personal bulletin boards or walls, the contents of which are under the
control of each and every user. In his or her bulletin board, a user/owner can post anythingfrom text, to pictures, to music and
videosaccess to which would depend on whether he or she allows one, some or all of the other users to see his or her posts. Since
gaining popularity, the OSN phenomenon has paved the way to the creation of various social networking sites, including the one
involved in the case at bar, www.facebook.com (Facebook), which, according to its developers, people use to stay connected with
friends and family, to discover whats going on in the world, and to share and express what matters to them. 28cralawlawlibrary

Facebook connections are established through the process of friending another user. By sending a friend request, the user invites
another to connect their accounts so that they can view any and all Public and Friends Only posts of the other. Once the request is
accepted, the link is established and both users are permitted to view the other users Public or Friends Only posts, among others.
Friending, therefore, allows the user to form or maintain one-to-one relationships with other users, whereby the user gives his or her
Facebook friend access to his or her profile and shares certain information to the latter. 29cralawlawlibrary

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with different privacy tools designed to
regulate the accessibility of a users profile31 as well as information uploaded by the user. In H v. W,32 the South Gauteng High Court
recognized this ability of the users to customize their privacy settings, but did so with this caveat: Facebook states in its policies
that, although it makes every effort to protect a users information, these privacy settings are not fool-proof.33cralawlawlibrary

For instance, a Facebook user can regulate the visibility and accessibility of digital images (photos), posted on his or her personal
bulletin or wall, except for the users profile picture and ID, by selecting his or her desired privacy
setting:chanRoblesvirtualLawlibrary

(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the users Facebook friends and their friends can view the photo;
(b) Friends - only the users Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the visibility of his or her
specific profile content, statuses, and photos, among others, from another users point of view. In other words, Facebook extends its
users an avenue to make the availability of their Facebook activities reflect their choice as to when and to what extent to disclose
facts about [themselves] and to put others in the position of receiving such confidences. 34 Ideally, the selected setting will be based
on ones desire to interact with others, coupled with the opposing need to withhold certain information as well as to regulate the
82
spreading of his or her personal information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can
view that users particular post.

STC did not violate petitioners daughters right to privacy

Without these privacy settings, respondents contention that there is no reasonable expectation of privacy in Facebook would, in
context, be correct. However, such is not the case. It is through the availability of said privacy tools that many OSN users are
said to have a subjective expectation that only those to whom they grant access to their profile will view the information they
post or upload thereto.35cralawlawlibrary

This, however, does not mean that any Facebook user automatically has a protected expectation of privacy in all of his or her
Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this case the children
of petitioners, manifest the intention to keep certain posts private, through the employment of measures to prevent access
thereto or to limit its visibility.36 And this intention can materialize in cyberspace through the utilization of the OSNs privacy
tools. In other words, utilization of these privacy tools is the manifestation, in cyber world, of the users invocation of his or
her right to informational privacy.37cralawlawlibrary

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not
be denied the informational privacy right which necessarily accompanies said choice.38 Otherwise, using these privacy tools would
be a feckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and
sets its privacy level at Only Me or a custom list so that only the user or a chosen few can view it, said photo would still be deemed
public by the courts as if the user never chose to limit the photos visibility and accessibility. Such position, if adopted, will not only
strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information
within the confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook users and whether the disclosure was
confidential in nature. In other words, did the minors limit the disclosure of the photos such that the images were kept within their
zones of privacy? This determination is necessary in resolving the issue of whether the minors carved out a zone of privacy when the
photos were uploaded to Facebook so that the images will be protected against unauthorized access and disclosure.

Petitioners, in support of their thesis about their childrens privacy right being violated, insist that Escudero intruded upon their
childrens Facebook accounts, downloaded copies of the pictures and showed said photos to Tigol. To them, this was a breach of the
minors privacy since their Facebook accounts, allegedly, were under very private or Only Friends setting safeguarded with a
password.39 Ultimately, they posit that their childrens disclosure was only limited since their profiles were not open to public
viewing. Therefore, according to them, people who are not their Facebook friends, including respondents, are barred from accessing
said post without their knowledge and consent. As petitioners children testified, it was Angela who uploaded the subject photos
which were only viewable by the five of them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that my students showed me some pictures of girls clad in brassieres. This
student [sic] of mine informed me that these are senior high school [students] of STC, who are their friends in [F]acebook. x x x They
then said [that] there are still many other photos posted on the Facebook accounts of these girls. At the computer lab, these students
then logged into their Facebook account [sic], and accessed from there the various photographs x x x. They even told me that there
had been times when these photos were public i.e., not confined to their friends in Facebook.

In this regard, We cannot give much weight to the minors testimonies for one key reason: failure to question the students act of
showing the photos to Tigol disproves their allegation that the photos were viewable only by the five of them. Without any evidence to
corroborate their statement that the images were visible only to the five of them, and without their challenging Escuderos claim that
the other students were able to view the photos, their statements are, at best, self-serving, thus deserving scant
consideration.42cralawlawlibrary

It is well to note that not one of petitioners disputed Escuderos sworn account that her students, who are the minors Facebook
friends, showed her the photos using their own Facebook accounts. This only goes to show that no special means to be able to view
the allegedly private posts were ever resorted to by Escuderos students,43 and that it is reasonable to assume, therefore, that the photos
were, in reality, viewable either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is Public, it can be surmised that the photographs in question were viewable
to everyone on Facebook, absent any proof that petitioners children positively limited the disclosure of the photograph. If such were
the case, they cannot invoke the protection attached to the right to informational privacy. The ensuing pronouncement in US v. Gines-
Perez44 is most instructive:chanRoblesvirtualLawlibrary

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances such as here, where the Defendant did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself. 45chanrobleslaw

Also, United States v. Maxwell46 held that [t]he more open the method of transmission is, the less privacy one can reasonably expect.
Messages sent to the public at large in the chat room or e-mail that is forwarded from correspondent to correspondent loses any
semblance of privacy.

That the photos are viewable by friends only does not necessarily bolster the petitioners contention. In this regard, the cyber
community is agreed that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of
the following:chanRoblesvirtualLawlibrary
83
(1) Facebook allows the world to be more open and connected by giving its users the tools to interact and share in any
conceivable way;47
(2) A good number of Facebook users befriend other users who are total strangers;48
(3) The sheer number of Friends one user has, usually by the hundreds; and
(4) A users Facebook friend can share49 the formers post, or tag50 others who are not Facebook friends with the former,
despite its being visible only to his or her own Facebook friends.

It is well to emphasize at this point that setting a posts or profile details privacy to Friends is no assurance that it can no longer be
viewed by another user who is not Facebook friends with the source of the content. The users own Facebook friend can share said
content or tag his or her own Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not
with the former. Also, when the post is shared or when a person is tagged, the respective Facebook friends of the person who shared
the post or who was tagged can view the post, the privacy setting of which was set at Friends.

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C, As Facebook friend, tags B
in As post, which is set at Friends, the initial audience of 100 (As own Facebook friends) is dramatically increased to 300 (As 100
friends plus Bs 200 friends or the public, depending upon Bs privacy setting). As a result, the audience who can view the post is
effectively expandedand to a very large extent.

This, along with its other features and uses, is confirmation of Facebooks proclivity towards user interaction and socialization rather
than seclusion or privacy, as it encourages broadcasting of individual user posts. In fact, it has been said that OSNs have facilitated
their users self-tribute, thereby resulting into the democratization of fame. 51 Thus, it is suggested, that a profile, or even a post, with
visibility set at Friends Only cannot easily, more so automatically, be said to be very private, contrary to petitioners argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students Facebook friends, respondent STC can
hardly be taken to task for the perceived privacy invasion since it was the minors Facebook friends who showed the pictures to Tigol.
Respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it
was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of
the minors. Curiously enough, however, neither the minors nor their parents imputed any violation of privacy against the students who
showed the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the photographs. In fact, what
petitioners attributed to respondents as an act of offensive disclosure was no more than the actuality that respondents appended said
photographs in their memorandum submitted to the trial court in connection with Civil Case No. CEB-38594.52 These are not
tantamount to a violation of the minors informational privacy rights, contrary to petitioners assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students scantily clad, are
personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare assertions that they utilized Facebooks privacy settings to make the
photos visible only to them or to a select few. Without proof that they placed the photographs subject of this case within the ambit of
their protected zone of privacy, they cannot now insist that they have an expectation of privacy with respect to the photographs in
question.

Had it been proved that the access to the pictures posted were limited to the original uploader, through the Me Only privacy setting,
or that the users contact list has been screened to limit access to a select few, through the Custom setting, the result may have been
different, for in such instances, the intention to limit access to the particular post, instead of being broadcasted to the public at large or
all the users friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that the best filter is the one between your childrens ears. 53 This means that self-regulation on the part of OSN
users and internet consumers in general is the best means of avoiding privacy rights violations. 54 As a cyberspace community member,
one has to be proactive in protecting his or her own privacy. 55 It is in this regard that many OSN users, especially minors, fail.
Responsible social networking or observance of the netiquettes 56 on the part of teenagers has been the concern of many due to the
widespread notion that teenagers can sometimes go too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57cralawlawlibrary

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its curriculum to educate its students
on proper online conduct may be most timely. Too, it is not only STC but a number of schools and organizations have already deemed
it important to include digital literacy and good cyber citizenship in their respective programs and curricula in view of the risks that
the children are exposed to every time they participate in online activities. 58 Furthermore, considering the complexity of the cyber
world and its pervasiveness, as well as the dangers that these children are wittingly or unwittingly exposed to in view of their
unsupervised activities in cyberspace, the participation of the parents in disciplining and educating their children about being a good
digital citizen is encouraged by these institutions and organizations. In fact, it is believed that to limit such risks, theres no substitute
for parental involvement and supervision.59cralawlawlibrary

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to be responsible in their dealings and activities
in cyberspace, particularly in OSNs, when it enforced the disciplinary actions specified in the Student Handbook, absent a showing
that, in the process, it violated the students rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage in cyberspace activities. Accordingly,
they should be cautious enough to control their privacy and to exercise sound discretion regarding how much information about
themselves they are willing to give up. Internet consumers ought to be aware that, by entering or uploading any kind of data or
information online, they are automatically and inevitably making it permanently available online, the perpetuation of which is outside
the ambit of their control. Furthermore, and more importantly, information, otherwise private, voluntarily surrendered by them can be
84
opened, read, or copied by third parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must not be negligent in
protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here, requires that claimants themselves take
utmost care in safeguarding a right which they allege to have been violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within the confines of their private zone. OSN users must be mindful
enough to learn the use of privacy tools, to use them if they desire to keep the information private, and to keep track of changes in the
available privacy settings, such as those of Facebook, especially because Facebook is notorious for changing these settings and the
sites layout often.

In finding that respondent STC and its officials did not violate the minors privacy rights, We find no cogent reason to disturb the
findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the Regional Trial Court,
Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.cralawred

85
G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO,
CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

x-------------------------------------x

G.R. No. 171409 May 3, 2006

NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171485 May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J.
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC
SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.

x-------------------------------------x

G.R. No. 171483 May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY GENERAL
JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE SECRETARY,
EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND
THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO, Respondents.

G.R. No. 171489 May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA
A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP
CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

x-------------------------------------x

G.R. No. 171424 May 3, 2006

86
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES
(AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior strength the use of force
cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.

Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: "In cases involving liberty, the scales of
justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed
and the weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP
1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine
the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017
declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the
Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which
states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. .
.," and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists the historical enemies of the
democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the
economy and sabotaging the peoples confidence in government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the
State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

87
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the
democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the
economy and sabotaging the peoples confidence in the government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State
the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as
President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to
Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to
immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed,
the President lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated
February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some members
of the political opposition in a plot to unseat or assassinate President Arroyo. 4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and
G.O. No. 5. Significantly, there was no refutation from petitioners counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the
necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents task to state the facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a
public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red
bands on our left arms." 5

88
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for bombings and
attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets
including some cabinet members and President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to
attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade
ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two
(2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National Peoples Army (NPA), a
tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to his arrest, Lt. San Juan announced
through DZRH that the "Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The
latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of responsible and trustworthy
officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that
Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger.
Lim said "it was all systems go for the planned movement against Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed
Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component
to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly
stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen.
Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim
and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist
Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to
end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly
announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by
the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with
the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered
as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the
death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join
5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests. 10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of
the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain
of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary
Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including
media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang
Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of
Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and
tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. 12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies.

89
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-
list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of
the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news
stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed
outside the building.13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition
paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the government during the state of national emergency." Director General
Lomibao stated that "if they do not follow the standards and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a
takeover." National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He asked for "balanced reporting" from broadcasters when covering
the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman
of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985.
Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had
long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP
1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates
at the Orchard Golf and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket
Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay
indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being
raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against
the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates
the constitutional guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the term "emergency" refers only
to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP
1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the
House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression"
and "a declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the armed forces
without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis;
and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances.

90
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional
because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI,
and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful exercise by the
President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that
"it amounts to an exercise by the President of emergency powers without congressional approval." In addition, petitioners asserted
that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are "unconstitutional for being
violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information
on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal.

In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP
1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and redress of
grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be
summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited
powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must
be some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the
end of the theory of judicial review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts may exercise such power only
when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself. 24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is
"definite and concrete, touching the legal relations of parties having adverse legal interest;" a real and substantial controversy
admitting of specific relief.25 The Solicitor General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered "moot and academic" by President Arroyos issuance of PP 1021.

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Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, 26 so that a
declaration thereon would be of no practical use or value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on
ground of mootness.29

The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight
(8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP
1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;31 second, the exceptional character
of the situation and the paramount public interest is involved;32third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; 33 and fourth, the case is capable of repetition yet evading review.34

All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners
alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect
the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover,
the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to
judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans Separate Opinion
in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justices very statement that an otherwise
"moot" case may still be decided "provided the party raising it in a proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present case falls right within this exception to the mootness rule pointed out by the
Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private suits, standing is governed by
the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that
"every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest"
is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit."38 Succinctly put, the plaintiffs standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an
allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a "citizen," or taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication
of the public order and the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens
suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument
of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayers
suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use
of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down
the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he
has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all
members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who impugns the validity of
a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse
Trainers Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of
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the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this Court
resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue
under the principle of "transcendental importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources are matters of transcendental importance which clothe
the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental importance of the
issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity as taxpayers
absent a showing that "Balikatan 02-01" involves the exercise of Congress taxing or spending powers, it reiterated its ruling
in Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens,
and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be
settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a peoples organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct injury" test with
respect to concerned citizens cases involving constitutional issues. It held that "there must be a showing that the citizen personally
suffered some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest
as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have standing to sue, as
they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus
impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with
petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal
arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question
their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of
whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it
is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the
Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian

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Reform,62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Taada v. Tuvera,64 that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient
to give it legal standing. Organizations may be granted standing to assert the rights of their members.65 We take judicial notice of
the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the
issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal
standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the Court held that the
mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe
it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view
of the transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal
disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of
no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more
the transcendental importance of the issue involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial
power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for
the application of the "transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP
1017 cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of
office or actual incumbency,67 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution
or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people 68 but he may be removed from office only in the
mode provided by law and that is by impeachment. 69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power has reached
its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government." 75Barcelon and Montenegro were in unison in declaring that the authority to decide whether an
exigency has arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite
view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence
of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the
focus to the system of checks and balances, "under which the President is supreme, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided
in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law
is a political or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a
need to re-examine the latter case, ratiocinating that "in times of war or national emergency, the President must be given absolute
control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his
conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the Presidents "calling-out" power as a discretionary power solely vested in his wisdom, it
stressed that "this does not prevent an examination of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is mainly a result of the Courts
reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action
the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to

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settle actual controversies involving rights which are legally demandable and enforceable," but also "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." The latter part of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government.81 It speaks
of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the Presidents decision is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis" and that if he fails, by way
of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual
basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus,
absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent
or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem
of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle to
the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act according
to discretion for the public good, without the proscription of the law and sometimes even against it."84 But Locke recognized that
this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other
remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency.
According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of the State

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even Sparta
allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a
supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt
about the general will, and it clear that the peoples first intention is that the State shall not perish. 86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him, it would more likely
be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship. 87

John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a temporary dictatorship."88

Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra constitutional measures; for although they may for a
time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be
disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it. 89

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the

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problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have
employed the doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be used as
a means for the defense of liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political
life."92 He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time "imposing limitation upon that
power."93 Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively shortDictatorship should always be strictly legitimate in
characterFinal authority to determine the need for dictatorship in any given case must never rest with the dictator
himself"94 and the objective of such an emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power in a government
where power has consciously been divided to cope with situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy power to determine the
existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany
and the United States, reverted to a description of a scheme of "constitutional dictatorship" as solution to the vexing problems
presented by emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional order

2) the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute
the dictator

3) No government should initiate a constitutional dictatorship without making specific provisions for its termination

4) all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit
of constitutional or legal requirements

5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or
effect

7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of
the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the hands of the
man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted

11) the termination of the crisis must be followed by a complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional dictatorship 99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness
of congressional investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, "the suggestion
that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation
is not based upon sound constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves merely
to distort the problem and hinder realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead
the "concept of constitutionalism" articulated by Charles H. McIlwain:

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A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent
with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some
indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The
two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists - from Locks "theory of prerogative," to
Watkins doctrine of "constitutional dictatorship" and, eventually, to McIlwains "principle of constitutionalism" --- ultimately aim to
solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective
limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional
Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jacksons "balanced
power structure."102 Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is
given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power,
using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech
cases, also known under the American Law as First Amendment cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon
the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have
not recognized an overbreadth doctrine outside the limited context of the First Amendment" (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion
are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary
action is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if
expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only "spoken
words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct."106Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort,"
and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.108 A writer and scholar in
Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on
a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory
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rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.
The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held
that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute
is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger
must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of
common intelligence must necessarily guess at its meaning and differ as to its application."110 It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of
common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or
rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."

First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance
with its rules without need of a call.

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The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is
that "whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion
or rebellion." Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to
determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered illegal
or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a "state of rebellion"
(in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of
the Revised Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.

President Arroyos declaration of a "state of rebellion" was merely an act declaring a status or condition of public moment or interest,
a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance,
and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence,
invasion or rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any
acts which will in any way render more difficult the restoration of order and the enforcement of law." 113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza, 114 an authority in
constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed
forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial
Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c)
take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.

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Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President
Arroyos calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17,
Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he
will, among others, "execute its laws." 116 In the exercise of such function, the President, if needed, may employ the powers attached to
his office as the Commander-in-Chief of all the armed forces of the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and
Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in
violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause "to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction."

Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted120 from Former President
Marcos Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as
any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated
by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to enforce obedience
to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction." Upon the other hand,
the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my
direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987).
She may issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental operations in pursuance of
his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.

Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate or temporary interest
which only concern a particular officer or office of the Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special orders.

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President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because
they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973
Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to
promulgate "decrees." Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically
states that "[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House
of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos
exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement certain laws, such as customs laws,
laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP
1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not
only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17, Article XII
which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business
affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected
with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the management, control and operation of the Manila Electric Company,
the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of
its effort to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17, Article
XII in PP 1017 is an encroachment on the legislatures emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the Presidents authority to declare "a state of national emergency" and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject
to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other national emergency."
If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a "state of national
emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a
state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President
before he can declare a "state of national emergency." The logical conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a Congressional enactment.
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But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public
interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses,
sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light
of each other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it
to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that
during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected
with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that
the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President.
Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a
law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is
not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be
implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he
"shall be Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the Presidents military power as Commander-in-Chief of the Armed Forces.
The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-
day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate
power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job
for the nations lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the Presidents power to see that the laws are faithfully executed refutes the
idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make
laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall
be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-
being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and
perception.127 Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide
range of situations, classifiable under three (3) principal heads: a)economic,128 b) natural disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. 131This is evident in the Records of the
Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committees definition of "national emergency" which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility
or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
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MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. 132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this be economic
emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the
President the power to take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are exercised,
remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects and shortcomings, in preference to the commingling of powers in
one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the
United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department unless we regard as legislating the carrying out of a legislative policy
according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-
death struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more
than in normal circumstances the various branches, executive, legislative, and judicial, given the ability to act, are called upon to
perform the duties and discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no
power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest.
Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to
point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by
Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed and
trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on their
way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard their office as a possible
"source of destabilization." Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away and dispersed"
when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant
to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?

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Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused 135 and may
afford an opportunity for abuse in the manner of application.136 The validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP 1017 is merely an
invocation of the Presidents calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in
PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The
answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of
power, and not a mere incidental result arising from its exertion.138This is logical. Just imagine the absurdity of situations when
laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from
the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficientadministration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives them. 139 They are based on and are the product of, a
relationship in which power is their source, and obedience, their object. 140 For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is invariably associated
with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to
enact a law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our country, but the
international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic slogans when it
comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions or threats of the use of force as the most recent by the United States against
Iraq consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.

The dilemma can by summarized in the saying "One countrys terrorist is another countrys freedom fighter." The apparent
contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the historical fact that leaders of
national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.

What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts from eventually legitimate
acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims the Kashmiri resistance groups who are terrorists in the perception of India, liberation fighters
in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the Socialist camp or,
most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in
enumerating examples of conflicting categorizations that cannot be reconciled in any way because of opposing political interests that
are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions
be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory,
the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of a certain ethnic

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group outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these
conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-state
actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! has become even more serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the
United States.141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. An
illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an
act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding
penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President
Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word "terrorism" is mentioned in the following provision: "That one who
conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to
the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the "acts of terrorism"
portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and
appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts
are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against unreasonable
search and seizure 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." 142 The
plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and
police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without warrant; second, the
PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen who "held his head and
tried to push him" inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the inquest for the charges of
inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were

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wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the
rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally. 147

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also
their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is
not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities
except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly
itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They
were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right.
As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon,148 it was held that
peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights
of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was held but as to its
purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy
against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different
matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly
and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No.
171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard
of the principle that "freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to prevent."149 Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that the State may deny the citizens right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of their permits. 150 The first time they learned of it
was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by government action, it
behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners
narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribunes offices were
searched without warrant;second, the police operatives seized several materials for publication; third, the search was conducted at
about 1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a strong presence, to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards and
the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may

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produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time
of the day or night. All these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in the degree
of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that
the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum" newspapers in the
above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials
for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as
to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta
principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and the seizure of its
materials for publication and other papers are illegal; and that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the admissibility of these
clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any
purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you have to
go there at 1 oclock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or
inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and inspect
and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:
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As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do not condone this. If the people
who have been injured by this would want to sue them, they can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be
condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I said, it
cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the police
officers, that is their responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point,
suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an integral part of
this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally rendered this case moot
and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there
is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the transcendental
issues raised by the parties should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-Chief addressed
to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard that the military and
the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and
should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted
to guide the military, and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of G.O. No.
5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners
Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members;
(3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and
the whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual
police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of
action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or administrative liabilities.

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It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give
the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, governmental action may vary in breadth and intensity from normal times,
yet they should not be arbitrary as to unduly restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is
possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call
by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII
of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public
utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e.
whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that
"acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU
members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence,
invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as
the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

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