WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND no2pep2010@yahoogroups.com.
ep2010@yahoogroups.com. These websites are easily accessible to particularly Ambassador Alfonso Yuchengco and Helen Dee and for
JOVENCIO PERECHE, SR., Petitioners, vs REGIONAL TRIAL COURT OF
MAKATI, BRANCH 149, and JESSIE JOHN P. GIMENEZ, Respondents.
G.R. No. 184800
CARPIO MORALES, J.:
Via a petition for Certiorari and Prohibition, petitioners Wonina M.
Bonifacio, et al. assail the issuances of Branch 149 of the Regional Trial
Court (RTC) of Makati (public respondent) Order[1] of April 22, 2008 which
denied their motion to quash the Amended Information indicting them
for libel, and Joint Resolution[2] of August 12, 2008 denying
reconsideration of the first issuance.
Private respondent Jessie John P. Gimenez[3] (Gimenez) filed on October
18, 2005, on behalf of the Yuchengco Family (in particular, former
Ambassador Alfonso Yuchengco and Helen Y. Dee (Helen) and of the
Malayan Insurance Co., Inc. (Malayan),[4] a criminal complaint,[5] before
the Makati City Prosecutors Office, for thirteen (13) counts of libel under
Article 355 in relation to Article 353 of the Revised Penal Code (RPC)
against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova Santos, who
are officers of Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph
Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina Bonifacio,
Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria Gomez Jacinto,
Jurencio Pereche, Ricardo Loyares and Peter Suchianco, who are trustees
of PEPCI, Trennie Monsod, a member of PEPCI (collectively, the accused),
and a certain John Doe, the administrator of the website
www.pepcoalition.com.
PEPCI appears to have been formed by a large group of disgruntled
planholders of Pacific Plans, Inc. (PPI) - a wholly owned subsidiary of Great
Pacific Life Assurance Corporation, also owned by the Yuchengco Group
of Companies (YGC) - who had previously purchased traditional pre-need
educational plans but were unable to collect thereon or avail of the
benefits thereunder after PPI, due to liquidity concerns, filed for corporate
rehabilitation with prayer for suspension of payments before the Makati
RTC.
Decrying PPIs refusal/inability to honor its obligations under the
educational pre-need plans, PEPCI sought to provide a forum by which the
planholders could seek redress for their pecuniary loss under their policies
by maintaining a website on the internet under the address of
www.pepcoalition.com.
Gimenez alleged that PEPCI also owned, controlled and moderated on the
internet a blogspot[6] under the website address
www.pacificnoplan.blogspot.com, as well as a yahoo e-group[7] at
the public or by anyone logged on to the internet.
Gimenez further alleged that upon accessing the above-stated websites in
Makati on various dates from August 25 to October 2, 2005, he was
appalled to read numerous articles [numbering 13], maliciously and
recklessly caused to be published by [the accused] containing highly
derogatory statements and false accusations, relentlessly attacking the
Yuchengco Family, YGC, and particularly, Malayan.[8] He cited an article
which was posted/published on www.pepcoalition.com on August 25,
2005 which stated:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang
mga kinatatakutan kong pagbagsak ng negotiation because it was done
prematurely since we had not file any criminal aspect of our case. What is
worse is that Yuchengcos benefited much from the nego. x x x . That is the
fact na talagang hindi dapat pagtiwalaan ang mga Yuchengcos.
LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN COURT,
BSP AND AMLC AND WHEREVER. Pumunta tayong muli sa senado,
congreso, RCBC Plaza, and other venues to air our grievances and call for
boycott ng YGC. Let us start within ourselves. Alisin natin ang mga
investments and deposits natin sa lahat ng YGC and I mean lahat and again
convince friends to do the same. Yung mga nanonood lang noon ay dapat
makisali na talaga ngayon specially those who joined only after knowing
that there was a negotiation for amicable settlements.
FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE READY
FOR IT BECAUSE THEY HAD SUCCESSFULLY LULL US AND THE NEXT TIME
THEY WILL TRY TO KILL US NA. x x x [9] (emphasis in the original)
By Resolution of May 5, 2006,[10] the Makati City Prosecutors Office,
finding probable cause to indict the accused, filed thirteen (13) separate
Informations[11] charging them with libel. The accusatory portion of one
Information, docketed as Criminal Case No. 06-876, which was raffled off
to public respondent reads:
That on or about the 25th day of August 2005 in Makati City, Metro
Manila, Philippines, a place within the jurisdiction of the Honorable Court,
the above-named accused, being then the trustees of Parents Enabling
Parents Coalition and as such trustees they hold the legal title to the
website www.pepcoalition.com which is of general circulation, and
publication to the public conspiring, confederating and mutually helping
with one another together with John Does, did then and there willfully,
unlawfully and feloniously and publicly and maliciously with intention of
attacking the honesty, virtue, honor and integrity, character and
reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family
further purpose exposing the complainant to public hatred and contempt
published an article imputing a vice or defect to the complainant and
caused to be composed, posted and published in the said website
www.pepcoalition.com and injurious and defamatory article as follows:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang
mga kinatatakutan kong pagbagsak ng negotiation. x x x x x x x x x
For sure may tactics pa silang nakabasta sa atin. Let us be ready for it
because they had successfully lull us and the next time they will try to kill
us na. x x x
A copy of the full text of the foregoing article as published/posted in
www.pepcoalition.com is attached as Annex F of the complaint.
That the keyword and password to be used in order to post and publish
the above defamatory article are known to the accused as trustees
holding legal title to the above-cited website and that the accused are the
ones
responsible for the posting and publication of the defamatory articles that
the article in question was posted and published with the object of the
discrediting and ridiculing the complainant before the public.
CONTRARY TO LAW.[12]
Several of the accused appealed the Makati City Prosecutors Resolution
by a petition for review to the Secretary of Justice who, by Resolution of
June 20, 2007,[13] reversed the finding of probable cause and accordingly
directed the withdrawal of the Informations for libel filed in court. The
Justice Secretary opined that the crime of internet libel was non-existent,
hence, the accused could not be charged with libel under Article 353 of
the RPC.[14]
Petitioners, as co-accused,[15] thereupon filed on June 6, 2006, before
the public respondent, a Motion to Quash[16] the Information in Criminal
Case No. 06-876 on the grounds that it failed to vest jurisdiction on the
Makati RTC; the acts complained of in the Information are not punishable
by law since internet libel is not covered by Article 353 of the RPC; and the
Information is fatally defective for failure to designate the offense charged
and the acts or omissions complained of as constituting the offense of
libel.
Citing Macasaet v. People,[17] petitioners maintained that the
Information failed to allege a particular place within the trial courts
jurisdiction where the subject article was printed and first published or
1
that the offended parties resided in Makati at the time the alleged
defamatory material was printed and first published.
By Order of October 3, 2006,[18] the public respondent, albeit finding that
probable cause existed, quashed the Information, citing Agustin v.
Pamintuan.[19] It found that the Information lacked any allegations that
the offended parties were actually residing in Makati at the time of the
commission of the offense as in fact they listed their address in the
complaint-affidavit at Yuchengco Tower in Binondo, Manila; or that the
alleged libelous article was printed and first published in Makati.
The prosecution moved to reconsider the quashal of the Information,[20]
insisting that the Information sufficiently conferred jurisdiction on the
public respondent. It cited Banal III v. Panganiban[21] which held that the
Information need not allege verbatim that the libelous publication was
printed and first published in the appropriate venue. And it pointed out
that Malayan has an office in Makati of which Helen is a resident.
Moreover, the prosecution alleged that even assuming that the
Information was deficient, it merely needed a formal amendment.
Petitioners opposed the prosecutions motion for reconsideration,
contending, inter alia, that since venue is jurisdictional in criminal cases,
any defect in an information for libel pertaining to jurisdiction is not a
mere matter of form that may be cured by amendment.[22]
By Order of March 8, 2007,[23] the public respondent granted the
prosecutions motion for reconsideration and accordingly ordered the
public prosecutor to amend the Information to cure the defect of want of
venue.
The prosecution thereupon moved to admit the Amended Information
dated March 20, 2007,[24] the accusatory portion of which reads:
That on or about the 25th day of August 2005 in Makati City, Metro
Manila, Philippines, a place within the jurisdiction of the Honorable Court,
the above-named accused, being then the trustees of Parents Enabling
Parents Coalition and as such trustees they hold the legal title to the
website www.pepcoalition.com which is of general circulation, and
publication to the public conspiring, confederating together with John
Does, whose true names, identities and present whereabouts are still
unknown and all of them mutually helping and aiding one another, did
then and there willfully, unlawfully and feloniously and publicly and
maliciously with intention of attacking the honesty, virtue, honor and
integrity, character and reputation of complainant Malayan Insurance Co.
Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and
Helen Dee and for further purpose exposing the complainant to public
hatred and contempt published an article imputing a vice or defect to the
complainant and caused to be composed, posted and published in the said
website www.pepcoalition.com, a website accessible in Makati City, an
injurious and defamatory article, which was first published and accessed
by the private complainant in Makati City, as follows:
x x x x (emphasis and underscoring in the original; italics supplied)
Petitioners moved to quash the Amended Information[25] which, they
alleged, still failed to vest jurisdiction upon the public respondent because
it failed to allege that the libelous articles were printed and first published
by the accused in Makati; and the prosecution erroneously laid the venue
of the case in the place where the offended party accessed the internet-
published article.
By the assailed Order of April 22, 2008, the public respondent, applying
Banal III, found the Amended Information to be sufficient in form.
Petitioners motion for reconsideration[26] having been denied by the
public respondent by Joint Resolution of August 12, 2008, they filed the
present petition for Certiorari and Prohibition faulting the public
respondent for:
1. NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION ARE NOT
PUNISHABLE BY LAW;
2. ADMITTING AN AMENDED INFORMATION WHOSE JURISDICTIONAL
ALLEGATIONS CONTINUES TO BE DEFICIENT; and
3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION FOR THE
PURPOSE OF CURING JURISDICTIONAL DEFECTS IS ILLEGAL.[27]
With the filing of Gimenezs Comment[28] to the petition, the issues are:
(1) whether petitioners violated the rule on hierarchy of courts to thus
render the petition dismissible; and (2) whether grave abuse of discretion
attended the public respondents admission of the Amended Information.
The established policy of strict observance of the judicial hierarchy of
courts,[29] as a rule, requires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with a higher
court.[30] A regard for judicial hierarchy clearly indicates that petitions for
the issuance of extraordinary writs against first level courts should be filed
in the RTC and those against the latter should be filed in the Court of
Appeals.[31] The rule is not iron-clad, however, as it admits of certain
exceptions.
Thus, a strict application of the rule is unnecessary when cases brought
before the appellate courts do not involve factual but purely legal
questions.[32]
In the present case, the substantive issue calls for the Courts exercise of
its discretionary authority, by way of exception, in order to abbreviate the
review process as petitioners raise a pure question of law involving
jurisdiction in criminal complaints for libel under Article 360 of the RPC
whether the Amended Information is sufficient to sustain a charge for
written defamation in light of the requirements under Article 360 of the
RPC, as amended by Republic Act (RA) No. 4363, reading:
Art. 360. Persons responsible.Any person who shall publish, exhibit or
cause the publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business
manager of a daily newspaper, magazine or serial publication, shall be
responsible for the defamations contained therein to the same extent as
if he were the author thereof.
The criminal action and civil action for damages in cases of written
defamations, as provided for in this chapter shall be filed simultaneously
or separately with the Court of First Instance of the province or city where
the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the
offense: Provided, however, That where one of the offended parties is a
public officer whose office is in the City of Manila at the time of the
commission of the offense, the action shall be filed in the Court of First
Instance of the City of Manila or of the city or province where the libelous
article is printed and first published, and in case such public officer does
not hold office in the City of Manila, the action shall be filed in the Court
of First Instance of the province or city where he held office at the time of
the commission of the offense or where the libelous article is printed and
first published and in case one of the offended parties is a private
individual, the action shall be filed in the Court of First Instance of the
province or city where he actually resides at the time of the commission
of the offense or where the libelous matter is printed and first published
x x x. (emphasis and underscoring supplied)
Venue is jurisdictional in criminal actions such that the place where the
crime was committed determines not only the venue of the action but
constitutes an essential element of jurisdiction.[33] This principle acquires
even greater import in libel cases, given that Article 360, as amended,
specifically provides for the possible venues for the institution of the
criminal and civil aspects of such cases.
2
In Macasaet,[34] the Court reiterated its earlier pronouncements in
Agbayani v. Sayo[35] which laid out the rules on venue in libel cases, viz:
For the guidance, therefore, of both the bench and the bar, this Court
finds it appropriate to reiterate our earlier pronouncement in the case of
Agbayani, to wit:
In order to obviate controversies as to the venue of the criminal action for
written defamation, the complaint or information should contain
allegations as to whether, at the time the offense was committed, the
offended party was a public officer or a private individual and where he
was actually residing at that time. Whenever possible, the place where
the written defamation was printed and first published should likewise be
alleged. That allegation would be a sine qua non if the circumstance as to
where the libel was printed and first published is used as the basis of the
venue of the action. (emphasis and underscoring supplied)
It becomes clear that the venue of libel cases where the complainant is a
private individual is limited to only either of two places, namely: 1) where
the complainant actually resides at the time of the commission of the
offense; or 2) where the alleged defamatory article was printed and first
published. The Amended Information in the present case opted to lay the
venue by availing of the second. Thus, it stated that the offending article
was first published and accessed by the private complainant in Makati
City. In other words, it considered the phrase to be equivalent to the
requisite allegation of printing and first publication.
The insufficiency of the allegations in the Amended Information to vest
jurisdiction in Makati becomes pronounced upon an examination of the
rationale for the amendment to Article 360 by RA No. 4363. Chavez v.
Court of Appeals[36] explained the nature of these changes:
Agbayani supplies a comprehensive restatement of the rules of venue in
actions for criminal libel, following the amendment by Rep. Act No. 4363
of the Revised Penal Code:
Article 360 in its original form provided that the venue of the criminal and
civil actions for written defamations is the province wherein the libel was
published, displayed or exhibited, regardless of the place where the same
was written, printed or composed. Article 360 originally did not specify
the public officers and the courts that may conduct the preliminary
investigation of complaints for libel.
Before article 360 was amended, the rule was that a criminal action for
libel may be instituted in any jurisdiction where the libelous article was
published or circulated, irrespective of where it was written or printed
(People v. Borja, 43 Phil. 618). Under that rule, the criminal action is
transitory and the injured party has a choice of venue.
Experience had shown that under that old rule the offended party could
harass the accused in a libel case by laying the venue of the criminal action
in a remote or distant place.
Thus, in connection with an article published in the Daily Mirror and the
Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and Joaquin Roces
were charged with libel in the justice of the peace court of San Fabian,
Pangasinan (Amansec v. De Guzman, 93 Phil. 933).
To forestall such harassment, Republic Act No. 4363 was enacted. It lays
down specific rules as to the venue of the criminal action so as to prevent
the offended party in written defamation cases from inconveniencing the
accused by means of out-of-town libel suits, meaning complaints filed in
remote municipal courts (Explanatory Note for the bill which became
Republic Act No. 4363, Congressional Record of May 20, 1965, pp. 424-5;
Time, Inc. v. Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311).
x x x x (emphasis and underscoring supplied)
Clearly, the evil sought to be prevented by the amendment to Article 360
was the indiscriminate or arbitrary laying of the venue in libel cases in
distant, isolated or far-flung areas, meant to accomplish nothing more
than harass or intimidate an accused. The disparity or unevenness of the
situation becomes even more acute where the offended party is a person
of sufficient means or possesses influence, and is motivated by spite or
the need for revenge.
If the circumstances as to where the libel was printed and first published
are used by the offended party as basis for the venue in the criminal
action, the Information must allege with particularity where the
defamatory article was printed and first published, as evidenced or
supported by, for instance, the address of their editorial or business
offices in the case of newspapers, magazines or serial publications. This
pre-condition becomes necessary in order to forestall any inclination to
harass.
The same measure cannot be reasonably expected when it pertains to
defamatory material appearing on a website on the internet as there
would be no way of determining the situs of its printing and first
publication. To credit Gimenezs premise of equating his first access to the
defamatory article on petitioners website in Makati with printing and first
publication would spawn the very ills that the amendment to Article 360
of the RPC sought to discourage and prevent. It hardly requires much
imagination to see the chaos that would ensue in situations where the
websites author or writer, a blogger or anyone who posts messages
therein could be sued for libel anywhere in the Philippines that the private
complainant may have allegedly accessed the offending website.
For the Court to hold that the Amended Information sufficiently vested
jurisdiction in the courts of Makati simply because the defamatory article
was accessed therein would open the floodgates to the libel suit being
filed in all other locations where the pepcoalition website is likewise
accessed or capable of being accessed.
Respecting the contention that the venue requirements imposed by
Article 360, as amended, are unduly oppressive, the Courts
pronouncements in Chavez[37] are instructive:
For us to grant the present petition, it would be necessary to abandon the
Agbayani rule providing that a private person must file the complaint for
libel either in the place of printing and first publication, or at the
complainants place of residence. We would also have to abandon the
subsequent cases that reiterate this rule in Agbayani, such as Soriano,
Agustin, and Macasaet. There is no convincing reason to resort to such a
radical action. These limitations imposed on libel actions filed by private
persons are hardly onerous, especially as they still allow such persons to
file the civil or criminal complaint in their respective places of residence,
in which situation there is no need to embark on a quest to determine
with precision where the libelous matter was printed and first published.
(Emphasis and underscoring supplied.)
IN FINE, the public respondent committed grave abuse of discretion in
denying petitioners motion to quash the Amended Information.
WHEREFORE, the petition is GRANTED. The assailed Order of April 22,
2008 and the Joint Resolution of August 12, 2008 are hereby SET ASIDE.
The Regional Trial Court of Makati City, Br. 149 is hereby DIRECTED TO
QUASH the Amended Information in Criminal Case No. 06-876 and
DISMISS the case.
SO ORDERED.
3
[ GR No. L-21450, Apr 15, 1968 ]
SERAFIN TIJAM v. MAGDALENO SIBONGHANOY
On July 19, 1948 - barely one month after the effectivity of Republic Act
No. 296 known as the Judiciary Act of 1948 the
spouses SerafinTijam and Felicitas Tagalog commenced Civil Case No. R-
660 in the Court of First Instance of Cebu against the
spouses MagdalenoSibonghanoy and Lucia Baguio to recover from them
the sum of P1,908.00, with legal interest thereon from the date of the
filing of the complaint until the whole obligation is paid, plus costs. As
prayed for in the complaint, a writ of attachment was issued by the court
against defendants' properties, but the same was soon dissolved upon the
filing of a counter-bond by defendants and the Manila Surety and Fidelity
Co., Inc. hereinafter referred to as the Surety, on the 31st of
the same month.
After being duly served with summons the defendants filed their answer
in which, after making some admissions and denials of the material
averments of the complaint, they interposed a counterclaim. This
counterclaim was answered by the plaintiffs.
After trial upon the issues thus joined, the Court rendered judgment in
favor of the plaintiffs and, after the same had become final
and executory, upon motion of the latter, the Court issued a writ of
execution against the defendants. The writ having been returned
unsatisfied, the plaintiffs moved for the issuance of a writ of execution
against the Surety's bond (Rec. on Appeal pp. 46-49), against which the
Surety filed a written opposition (Id. pp. 49) upon two grounds, namely,
(1) Failure to prosecute and (2) Absence of a demand upon the Surety for
the payment of the amount due under the judgment. Upon these
grounds the Surety prayed the Court not only to deny the motion for
execution against its counter-bond but also the
following affirmative relief: "to relieve the herein bonding company of
its liability, if any, under the bond in question" (Id. p. 54) The Court denied
this motion on the ground solely that no previous demand had been made
on the Surety for the satisfaction of the judgment. Thereafter the
necessary demand was made, and upon failure of the Surety to satisfy the
judgment, the plaintiffs filed a second motion for execution against the
counter-bond. On the date set for the hearing thereon, the Court, upon
motion of the Surety's counsel, granted the latter a period of five days
within which to answer the motion. Upon its failure to file such answer,
the Court granted the motion for execution and the corresponding writ
was issued.
Subsequently, the Surety moved to quash the writ on the ground that the
same was issued without the required summary hearing provided for in
Section 17 of Rule 59 of the Rules of Court. As the Court denied the
motion, the Surety appealed to the Court of Appeals from such order of
denial and from the one denying its motion for reconsideration (Id. pp.
97). Its record on appeal was then printed as required by the Rules, and in
due time it filed its brief raising therein no other question but the ones
covered by the following assignment of errors:
"I. That the Honorable Court a quo erred in issuing its order dated
November 2, 1957, by holding the incident as submitted for resolution,
without a summary hearing and compliance with the other mandatory
requirements provided for in Section 17, Rule 59 of the Rules of Court.
"II. That the Honorable Court a quo erred in ordering the issuance of
execution against the herein bonding company-appellant.
"III. That the Honorable Court a quo erred in denying the motion to quash
the writ of execution filed by the herein bonding company-appellant as
well as its subsequent motion for reconsideration, and/or in not quashing
or setting aside the writ of execution."
Not one of the assignment of errors - it is obvious -raises the question of
lack of jurisdiction, neither directly nor indirectly.
Although the appellees failed to file their brief, the Court of Appeals,
on December 11, 1962, decided the case affirming the orders appealed
from.
On January 8, 1963 - five days after the Surety received notice of
the decision, it filed a motion asking for extension of time within which to
file a motion for reconsideration. The Court of Appeals granted the
motion in its resolution of January 10 of the same year. Two days later
the Surety filed a pleading entitled MOTION TO DISMISS, alleging
substantially that appellees' action was filed in the Court of First Instance
of Cebu on July 19, 1948 for the recovery of the sum of P1,908.00 only;
that a month before that date Republic Act No. 296, otherwise known as
the Judiciary Act of 1948, had already become effective, Section 88 of
which placed within the original exclusive jurisdiction of inferior courts all
civil actions where the value of the subject matter or the amount of the
demand does not exceed P2,000.00, exclusive of interest and costs; that
the Court of First Instance therefore had no jurisdiction to try and decide
the case. Upon these premises the Surety's motion prayed the Court of
Appeals to set aside its decision and to dismiss the case. By resolution
ofJanuary 16, 1963 the Court of Appeals required the appellees to answer
the motion to dismiss, but they failed to do so. Whereupon, on May 20
of the same year, the Court resolved to set aside its decision and to certify
the case to Us. The pertinent portions of its resolution read as follows:
"It would indeed appear from the record that the action at bar, which is a
suit for collection of money in the sum of exactly P1,908.00 exclusive of
interest, was originally instituted in the Court of First Instance of Cebu on
July 19, 1948. But about a month prior to the filing of the complaint, more
specifically on June 17, 1948, the Judiciary Act of 1948 took effect,
depriving the Court of First Instance of original jurisdiction over cases in
which the demand, exclusive of interest, is not more than
P2,000.00. (Secs. 44[c] and 86[b] R.A. No. 296.)
"We believe, therefore, that the point raised in appellant's motion is
an important one which merits serious consideration. As stated, the
complaint was filed on July 19, 1948. This case therefore has been
pending now for almost 15 years, and throughout the entire proceeding
appellant never raised the question of jurisdiction until after receipt of
this Court's adverse decision.
"There are three cases decided by the Honorable Supreme Court which
may be worthy of consideration in connection with this case, namely:
Tyson Tan, et al. vs. Filipinas Compañia de Seguros, et al., G.R. No. L-
10096, March 23, 1956; PindanganAgricultural Co., Inc. vs. Jose P. Dans,
etc., et al., G. R. No. L-14591, September 26, 1962; and Alfredo Mon-
telibano et al. vs.Bacolod-Murcia Milling Co., Inc., G. R. No. L-15092,
September 29, 1962, wherein the Honorable Supreme Court frowned
upon the 'undesirable practice' of appellants submitting their case for
decision and then accepting the judgment, if favorable, but attacking it for
lack of jurisdiction when adverse.
"Considering, however, that the Supreme Court has the 'exclusive'
appellate jurisdiction over 'all cases in which the jurisdiction of any inferior
court is in issue' (Sec. 1, Par. 3[3], Judiciary Act of 1948, as amended), we
have no choice but to certify, as we hereby do certify, this case to the
Supreme Court.
"ACCORDINGLY, pursuant to Section 31 of the Judiciary Act of 1948 as
amended, let the record of this case be forwarded to the Supreme Court."
It is an undisputed fact that the action commenced by appellees in the
Court of First Instance of Cebu against the Sibunghanoy spouses was for
the recovery of the sum of P1,908.00 only - an amount within the original
exclusive jurisdiction of inferior courts in accordance with the provisions
of the Judiciary Act of 1948 which had taken effect about a month prior to
the date when the action was commenced. True also is the rule that
jurisdiction over the subject matter is conferred upon the courts
4
exclusively by law, and as the lack of it affects the very authority of the
court to take cognizance of the case, the objection may be raised at any
stage of the proceedings. However, considering the facts and
circumstances of the present case - which shall forthwith be set forth - We
are of the opinion that the Surety is now barred by laches from invoking
this plea at this late hour for the purpose of annuling everything done
heretofore in the case with its active participation.
As already stated, the action was commenced in the Court of First Instance
of Cebu on July 19, 1948, that is, almost fifteen years beforethe Surety
filed its motion to dismiss on January 12, 1963 raising the question of lack
of jurisdiction for the first time.
It must be remembered that although the action, originally, was
exclusively against the Sibunghanoy spouses, the Surety became a quasi-
party therein since July 31, 1948 when it filed a counter-bond for the
dissolution of the writ of attachment issued by the court of origin (Record
on Appeal, pp. 15-19). Since then, it acquired certain rights and assumed
specific obligations in connection with the pending case, in accordance
with Sections 12 and 17, Rule 57, Rules of Court (Bautista vs. Joaquin 46
Phil. 885; Kimpang & Co. vs. Javier 65 Phil. 170).
Upon the filing of the first motion for execution against the counter-bond
the Surety not only filed a written opposition thereto praying for its denial
but also asked for an additional affirmative relief - that it be relieved of its
liability under the counter-bond upon the grounds relied upon in support
of its opposition - lack of jurisdiction of the court a quo not being one of
them.
Then, at the hearing on the second motion for execution against the
counter-bond, the Surety appeared, through counsel, to ask for time
within which to file an answer or opposition thereto. This motion was
granted, but instead of such answer or opposition, the Surety filed the
motion to dismiss mentioned heretofore.
A party may be estopped or barred from raising a question in different
ways and for different reasons. Thus we speak of estoppel in pais,
of estoppel by deed or by record, and of estoppel by laches.
Laches, in a general sense, is failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence,
could or should have been done earlier; it is negligence or omission to
assert a right within a reasonable time, warranting a presumption that the
party entitled to assert it either has abandoned it or declined to assert it.
The doctrine of laches or of "stale demands" is based upon grounds of
public policy which requires, for the peace of society, the discouragement
of stale claims and, unlike the statute of limitations, is not a
mere question of time but is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced or asserted.
It has been held that a party can not invoke the jurisdiction of a court to
secure affirmative relief against his opponent and, after obtaining or
failing to obtain such relief, repudiate or question that same jurisdiction
(Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way
of explaining the rule, it was further said that the question whether the
court had jurisdiction either of the subject matter of the action or of the
parties was not important in such cases because the party is barred from
such conduct not because the judgment or order of the court is valid and
conclusive as an adjudication, but for, the reason that such a practice can
not be tolerated - obviously for reasons of public policy.
Furthermore, it has also been held that after voluntarily submitting a
cause and encountering an adverse decision on the merits, it is too late
for the looser to question the jurisdiction or power of the court (Pease
vs. Rathbun-Jones etc. 243 U.S. 273, 61 L.Ed. 715, 37 S.Ct. 283; St. Louis
etc. vs. McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess,
16 Wyo. 58, the Court said that it is not right for a party who has affirmed
and invoked the jurisdiction of a court in a particular matter to secure an
affirmative relief, to afterwards deny that same jurisdiction to escape a
penalty.
Upon this same principle is what We said in the three cases mentioned in
the resolution of the Court of Appeals of May 20, 1963 (supra) - to
the effect that we frown upon the "undesirable practice" of a party
submitting his case for decision and then accepting the judgment, only if
favorable, and attacking it for lack of jurisdiction, when adverse -as well
as in Pindañgan etc. vs. Dans et al., G. R. L-14591, September 26,
1962; Montelibano et al., vs. Bacolod-Murcia Milling Co., Inc., G.R. L-
15092; Young Men Labor Union etc. vs. the Court of Industrial Relations
et al., G.R. L-20307, Feb. 26, 1965, and Mejia vs. Lucas 100 Phil. p. 277.
The facts of this case show that from the time the Surety became a quasi-
party on July 31, 1948, it could have raised the question of the lack of
jurisdiction of the Court of First Instance of Cebu to take cognizance of the
present action by reason of the sum of money involved which, according
to the law then in force, was within the original exclusive jurisdiction of
inferior courts. It failed to do so. Instead, at several stages of the
proceedings in the court a quo as well as in the Court of Appeals, it
invoked the jurisdiction of said courts to obtain affirmative relief and
submitted its case for a final adjudication on the merits. It was only after
an adverse decision was rendered by the Court of Appeals that it finally
woke up to raise the question of jurisdiction. Were We to sanction such
conduct on its part, We would in effect be declaring as useless
all the proceedings had in the present case since it was commenced on
July 19, 1948 and compel the judgment creditors to go up their Calvary
once more. The inequity and unfairness of this is not only patent but
revolting.
Coming now to the merits of the appeal: after going over the entire
record, We have become persuaded that We can do nothing better than
to quote in toto, with approval, the decision rendered by the Court of
Appeals on December 11, 1962 as follows:
"In Civil Case No. R-660 of the Court of First Instance of Cebu, which was
a suit for collection of a sum of money, a writ of attachment was issued
against defendants' properties. The attachment, however, was
subsequently discharged under Section 12 of Rule 59 upon the filing by
defendants of a bond subscribed by Manila Surety & Fidelity Co., Inc.
"After trial, judgment was rendered in favor of plaintiffs.
"The writ of execution against defendants having been returned totally
unsatisfied, plaintiffs moved, under Section 17 of Rule 59, for issuance of
writ of execution against Manila Surety & Fidelity Co., Inc. to enforce the
obligation of the bond. But the motion was, upon the surety's opposition,
denied on the ground that there was 'no showing that a demand had been
made by the plaintiffs to the bonding company for payment of the
amount due under the judgment' (Record on Appeal, p. 60).
"Hence, plaintiffs made the necessary demand upon the surety for
satisfaction of the judgment, and upon the latter's failure to pay the
amount due, plaintiffs again filed a motion dated October 31, 1957, for
issuance of writ of execution against the surety, with notice of hearing on
November 2, 1957. On October 31, 1957, the surety received copy of said
motion and notice of hearing.
"It appears that when the motion was called on November 2, 1957, the
surety's counsel asked that he be given time within which to answer the
motion, and so an order was issued in open court, as follows:
'As prayed for, Atty. Jose P. Soberano, Jr., counsel for the Manila Surety &
Fidelity Co., Inc., Cebu Branch, is given until Wednesday, November 6,
1957, to file his answer to the motion for the issuance of a writ of
execution dated October 30, 1957 of the plaintiffs, after which this in-
cident shall be deemed submitted for resolution. 'SO ORDERED.
5
[G.R. No. 133289. December 23, 1999]
LICERIO A. ANTIPORDA, JR., ELITERIO RUBIACO, VICTOR GASCON and
CAESAR TALIA petitioners, vs. HON. FRANCIS E. GARCHITORENA, HON.
EDILBERTO G. SANDOVAL, HON. CATALINO CASTAEDA, JR. in their
capacity as Presiding Justice and Associate Justices of the Sandiganbayan
respondents.
DECISION
BUENA, J.:
This is a Petition for Certiorari and Prohibition with Preliminary Injunction
and/or Temporary Restraining Order to restrain the respondent Justices
of the First Division of the Sandiganbayan from further proceeding with
Crim. Case No. 24339 and from enforcing the warrants for the arrest of
the accused named therein (herein petitioners) or to maintain the status
quo until further orders from this Court.
The antecedent facts of the case are as follows:
Accused Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and
Caesar Talla were charged with the crime of kidnapping one Elmer Ramos
in an Information dated September 18, 1997. It was filed with the First
Division of the Sandiganbayan comprised of the Honorable Francis E.
Garchitorena, Edilberto E. Sandoval, and Catalino Castaeda, Jr. The
Information reads as follows:
That on or about September 1, 1995, in the Municipality of Sanchez Mira,
Province of Cagayan and within the jurisdiction of this Honorable Court,
the said accused Eliterio Rubiaco, Caesar Talla, Vicente Gascon and Licerio
Antiporda, Jr., armed with guns, conspiring together and helping one
another, by means of force, violence and intimidation and without legal
grounds or any authority of law, did then and there willfully, unlawfully
and feloniously kidnap and carry away one Elmer Ramos from his
residence in Marzan, Sanchez Mira, Cagayan against his will with the use
of a Maroon Tamaraw FX motor vehicle.
CONTRARY TO LAW[1]
On November 10, 1997, the Court issued an order giving the prosecution
represented by Prosecutor Evelyn T. Lucero Agcaoili thirty (30) days within
which to submit the amendment to the Information. The said order is
quoted in full as follows:
ORDER
This morning, the prosecution represented by Prosecutor Evelyn T. Lucero
Agcaoili appeared in response to this Courts Order of clarification on the
propriety of proceeding with the Information as it stands.
On her own, Prosecutor Agcaoili informed the Court that there were
inadequacies in the allegations in the Information for which reason she
would beg leave to amend the same. The Court for its part expressed
anxiety as to the Courts jurisdiction over the case considering that it was
not clear whether or not the subject matter of the accusation was office
related.
For this purpose, Prosecutor Agcaoili is given thirty (30) days within which
to submit the amendment embodying whatever changes she believes are
appropriate or necessary in order for the Information to effectively
describe the offense herein charged. Within the same period, Prosecutor
Agcaoili shall submit an expansion of the recommendation to file the
instant Information against the accused before this Court indicating
thereon the office related character of the accusation herein so that the
Court might effectively exercise its jurisdiction over the same.
SO ORDERED.[2]
The prosecution on even date complied with the said order and filed an
Amended Information, which was admitted by the Sandiganbayan in a
resolution dated November 24, 1997.[3] The Amended Information thus
reads:
That on or about September 10, 1997, at Sanchez Mira, Cagayan and
within the jurisdiction of this Honorable Court, the accused Licerio
Antiporda, Jr., being the Municipal Mayor of Buguey, Cagayan in the
exercise of his official duties as such and taking advantage of his position,
ordered, confederated and conspired with Juan Gallardo, Barangay
Captain of San Lorenzo, Buguey, Cagayan (now deceased) and accused
Eliterio Rubiaco, barangay councilman of San Lorenzo, Buguey, Cagayan,
Vicente Gascon and Caesar Talla with the use of firearms, force, violence
and intimidation, did then and there willfully, unlawfully and feloniously
kidnap and abduct the victim Elmer Ramos without any authority of law
from his residence at Marzan, Sanchez Mira, Cagayan against his will, with
the use of a Maroon Tamaraw FX motor vehicle and subsequently bring
and detain him illegally at the residence of accused Mayor Licerio
Antiporda, Jr. for more than five (5) days.
CONTRARY TO LAW.[4]
Accused then filed an Urgent Omnibus Motion dated November 16, 1997
praying that a reinvestigation of the case be conducted and the issuance
of warrants of arrest be deferred.[5]
An order dated November 26, 1997 was penned by Prosecutor Evelyn T.
Lucero-Agcaoili recommending the denial of the accuseds Urgent
Omnibus Motion[6] was approved by Ombudsman Aniano A. Desierto on
January 9, 1998.[7]
The accused thereafter filed on March 5, 1998 a Motion for New
Preliminary Investigation and to Hold in Abeyance and/or Recall Warrant
of Arrest Issued.[8] The same was denied in an order given in open court
dated March 12, 1998 "on the ground that there was nothing in the
Amended Information that was added to the original Information so that
the accused could not claim a right to be heard separately in an
investigation in the Amended Information. Additionally, the Court ruled
that 'since none of the accused have submitted themselves to the
jurisdiction of the Court, the accused are not in a position to be heard on
this matter at this time' (p. 245, Record)."[9]
Subsequently, the accused filed on March 24, 1998 a Motion to Quash the
Amended Information for lack of jurisdiction over the offense
charged.[10]
On March 27, 1998, the Sandiganbayan issued an Order, to wit:
"The Motion to Quash filed in behalf of the accused by Atty. Orlando B.
Consigna is ignored, it appearing that the accused have continually
refused or otherwise failed to submit themselves to the jurisdiction of this
Court. At all events there is an Amended Information here which makes
an adequate description of the position of the accused thus vesting this
Court with the office related character of the offense of the accused.
"SO ORDERED."[11]
A motion for reconsideration was filed on April 3, 1998 by the accused
wherein it was alleged that the filing of the Motion to Quash and the
appearance of their counsel during the scheduled hearing thereof
amounted to their voluntary appearance and invested the court with
jurisdiction over their persons.[12]
The Sandiganbayan denied the motion for reconsideration filed by the
accused in its resolution dated April 24, 1998.[13]
Hence, this petition filed by Licerio A. Antiporda, Jr., Eliterio Rubiaco,
Victor Gascon, and Caesar Talla.
The petitioners pose the following questions for the resolution of this
Court.
a) CAN THE SANDIGANBAYAN, WHICH HAS NO JURISDICTION OVER THE
OFFENSE CHARGED IN THE ORIGINAL INFORMATION, SUBSEQUENTLY
ACQUIRE SUCH JURISDICTION BY THE SIMPLE EXPEDIENT OF AMENDING
6
THE INFORMATION TO SUPPLY, FOR THE FIRST TIME, JURISDICTIONAL
FACTS NOT PREVIOUSLY AVERRED IN THE ORIGINAL INFORMATION? and
b) COROLLARILY, CAN THE AMENDED INFORMATION BE ALLOWED
WITHOUT CONDUCTING ANEW A PRELIMINARY INVESTIGATION FOR THE
GRAVER OFFENSE CHARGED THEREIN?
The petition is devoid of merit.
Jurisdiction is the power with which courts are invested for administering
justice, that is, for hearing and deciding cases. In order for the court to
have authority to dispose of the case on the merits, it must acquire
jurisdiction over the subject matter and the parties.[14]
Section 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861
provides for the jurisdiction of the Sandiganbayan:
Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
xxx
(2) Other offenses or felonies committed by public officers and employees
in relation to their office, including those employed in government-owned
or controlled corporations, whether simple or complexed with other
crimes, where the penalty prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or a fine of P6,000.00.
Provided, however, That offenses or felonies mentioned in this paragraph
where the penalty prescribed by law does not exceed prision correccional
or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by
the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court and Municipal Circuit Trial Court.
The Sandiganbayan exercises not only civil but also criminal jurisdiction.
Criminal jurisdiction, as defined in the case of People vs. Mariano[15], is
necessarily the authority to hear and try a particular offense and impose
the punishment for it.
The case of Arula vs. Espino[16]enumerates the requirements wherein a
court acquires jurisdiction to try a criminal case, to wit:
To paraphrase: beyond the pale of disagreement is the legal tenet that a
court acquires jurisdiction to try a criminal case only when the following
requisites concur: (1) the offense is one which the court is by law
authorized to take cognizance of, (2) the offense must have been
committed within its territorial jurisdiction, and (3) the person charged
with the offense must have been brought in to its forum for trial, forcibly
by warrant of arrest or upon his voluntary submission to the court.
The petitioners argue that the Sandiganbayan had no jurisdiction to take
cognizance of the case because the original information did not allege that
one of the petitioners, Licerio A. Antiporda, Jr., took advantage of his
position as mayor of Buguey, Cagayan to order the kidnapping of Elmer
Ramos. They likewise assert that lacking jurisdiction a court can not order
the amendment of the information. In the same breath, they contend
however that the Sandiganbayan had jurisdiction over the persons of the
accused.
They question the assumption of jurisdiction by the Sandiganbayan over
their case yet they insist that said court acquired jurisdiction over their
motion to quash. The petitioner can not have their cake and eat it too.
In the aforementioned case of Arula vs. Espino[17]it was quite clear that
all three requisites, i.e., jurisdiction over the offense, territory and person,
must concur before a court can acquire jurisdiction to try a case.
It is undisputed that the Sandiganbayan had territorial jurisdiction over
the case.
And we are in accord with the petitioners when they contended that when
they filed a motion to quash it was tantamount to a voluntary submission
to the Courts authority. They cite the case of Layosa vs. Rodriguez[18] in
support of their contention. For therein, it was ruled that the voluntary
appearance of the accused at the pre-suspension hearing amounted to his
submission to the courts jurisdiction even if no warrant of arrest has yet
been issued.
To counter this contention of the petitioners the prosecution adverted to
case of de los Santos-Reyes vs. Montesa, Jr.[19] which was decided some
28 years after the Layosa case. In this more recent case, it was held that:
xxx the accused xxx have no right to invoke the processes of the court
since they have not been placed in the custody of the law or otherwise
deprived of their liberty by reason or as a consequence of the filling of the
information. For the same reason, the court had no authority to act on the
petition.
We find that the case of Layosa and de los Santos-Reyes are not
inconsistent with each other since both these cases discussed the rules on
when a court acquires jurisdiction over the persons of the accused, i.e.,
either through the enforcement of warrants of arrest or their voluntary
submission to the court.
The only difference, we find, is that the de los Santos-Reyes case harped
mainly on the warrant of arrest angle while the Layosa case dealt more on
the issue of voluntary submission ruling, that the appearance at the
hearing through a lawyer was a submission to the courts jurisdiction.
Having discussed the third requirement we now come to the question of
whether or not the Sandiganbayan had jurisdiction over the offense
charged.
We answer in the negative. The original Information filed with the
Sandiganbayan did not mention that the offense committed by the
accused is office-related. It was only after the same was filed that the
prosecution belatedly remembered that a jurisdictional fact was omitted
therein.
However, we hold that the petitioners are estopped from assailing the
jurisdiction of the Sandiganbayan for in the supplemental arguments to
motion for reconsideration and/or reinvestigation dated June 10,
1997[20] filed with the same court, it was they who challenged the
jurisdiction of the Regional Trial Court over the case and clearly stated in
their Motion for Reconsideration that the said crime is work connected,
which is hereunder quoted, as follows:
Respondents (petitioners herein) have thoroughly scanned the entire
records of the instant case and no where is there any evidence to show
that the Honorable Prosecution Office of the Province of Cagayan have
been authorized by the Office of the Honorable Ombudsman to conduct
the Preliminary Investigation much less had the former office been
authorized to file the corresponding Information as the said case, if
evidence warrants, fall exclusively with the jurisdiction of the Honorable
Sandiganbayan notwithstanding the presence of other public officers
whose salary range is below 27 and notwithstanding the presence of
persons who are not public officers.
It is a well-settled rule that a party cannot invoke the jurisdiction of a court
to secure affirmative relief against his opponent, and after obtaining or
failing to obtain such relief, repudiate or question that same
jurisdiction.[21]
We therefore hold that the Sandiganbayan has jurisdiction over the case
because of estoppel and it was thus vested with the authority to order the
amendment of the Information.
Rule 110, Section 14 of the Rules of Court provides thus:
Section 14. Amendment. The information or complaint may be amended,
in substance or form, without leave of court, at any time before the
7
accused pleads; and thereafter and during the trial as to all matters of
form, by leave and at the discretion of the court, when the same can be
done without prejudice to the rights of the accused.
xxx xxx xxx
Petitioner prayed that a reinvestigation be made in view of the Amended
Information.
We hold that the reinvestigation is not necessary anymore. A
reinvestigation is proper only if the accuseds substantial rights would be
impaired. In the case at bar, we do not find that their rights would be
unduly prejudiced if the Amended Information is filed without a
reinvestigation taking place. The amendments made to the Information
merely describe the public positions held by the accused/petitioners and
stated where the victim was brought when he was kidnapped.
Information may be amended at any time before arraignment before the
Sandiganbayan, and indeed, by leave of court at any time before judgment
is rendered by the Sandiganbayan, considering that such an amendment
would not affect the juridical nature of the offense charged (i.e., murder),
the qualifying circumstances alleged in the information, or the defenses
that petitioner may assert before the Sandiganbayan. In other words, the
amendment may be made before the Sandiganbayan without surprising
the petitioner or prejudicing his substantive rights.[24] (Underscoring
Supplied)
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby
DISMISSED.
SO ORDERED.

It must here be stressed that a preliminary investigation is essentially

inquisitorial, and it is often the only means of discovering the persons who
may be reasonably charged with a crime, to enable the prosecutor to
prepare his complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a crime
has been committed and whether there is probable cause to believe that
the accused is guilty thereof, and it does not place the persons accused in
jeopardy. It 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.[22]

The purpose of a preliminary investigation has been achieved already and

we see no cogent nor compelling reason why a reinvestigation should still
be conducted.

As an aside, an offense is considered committed in relation to office when

it is intimately connected with their respective offices and was
perpetrated while they were in the performance, though improper or
irregular, of their official functions.[23]

In the case of Cunanan vs. Arceo, it was held that:

... the absence in the information filed on 5 April 1991 before Branch 46
of the RTC of San Fernando, Pampanga, of an allegation that petitioner
had committed the offense charged in relation to his office is immaterial
and easily remedied. Respondent RTC judges had forwarded petitioners
case to the Sandiganbayan, and the complete records transmitted thereto
in accordance with the directions of this Court set out in the Asuncion
case: x x x As if it was originally filed with [the Sandiganbayan]. That
8
 G.R. No. 158763
JOSE C. MIRANDA, ALBERTO P.
DALMACIO, and ROMEO B. OCON,
Petitioners,
- versus -
VIRGILIO M. TULIAO,
Respondent.
This is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the 18 December 2002 Decision[1] of the Court of Appeals
in CA-G.R. SP No. 67770 and its 12 June 2003 Resolution denying
petitioners Motion for Reconsideration. The dispositive portion of the
assailed decision reads as follows:
WHEREFORE, finding public respondent Judge Anastacio D. Anghad to
have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Orders, the instant petition for
certiorari, mandamus and prohibition is hereby GRANTED and GIVEN DUE
COURSE, and it is hereby ordered:
1. The assailed Joint Order dated August 17, 2001, Order dated
September 21, 2001, Joint Order dated October 16, 2001 and Joint Order
dated November 14, 2001 dismissing the two (2) Informations for
Murder, all issued by public respondent Judge Anastacio D. Anghad in
Criminal Cases Nos. 36-3523 and 36-3524 are hereby REVERSED and SET
ASIDE for having been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction, and another entered UPHOLDING,
AFFIRMING[,] and REINSTATING the Order dated June 25, 2001 and Joint
Order dated July 6, 2001 issued by the then acting Presiding
Judge Wilfredo Tumaliuan;
2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered
REINSTATED in the docket of active criminal cases of Branch 36 of the
Regional Trial Court of Santiago City, Isabela; and
3. Public respondent Judge Anastacio D. Anghad is DIRECTED to ISSUE
forthwith Warrants of Arrest for the apprehension of private respondents
Jose Pempe Miranda, SPO3 Alberto P. Dalmacio, PO3 Romeo B. Ocon and
accused Rodel T. Maderal in said Criminal Cases Nos. 36-3523 and 36-
3524.[2]
The factual and procedural antecedents of the case are as follows:
On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan,
Ramon, Isabela, which were later identified as the dead bodies of
Vicente Bauzon and Elizer Tuliao, son of private
respondent Virgilio Tuliao who is now under the witness protection
program.
Two informations for murder were filed against SPO1 Wilfredo Leao,
SPO1 Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu,
SPO2 Rodel Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court
(RTC) of Santiago City.
The venue was later transferred to Manila. On 22 April 1999, the RTC of
Manila convicted all of the accused and sentenced them to two counts
of reclusion perpetua except SPO2 Maderal who was yet to be arraigned
at that time, being at large. The case was appealed to this Court on
automatic review where we, on 9 October 2001, acquitted the accused
therein on the ground of reasonable doubt.
Sometime in September 1999, SPO2 Maderal was arrested. On 27 April
2001, he executed a sworn confession and identified petitioners Jose C.
Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio, a
certain Boyet dela Cruz and Amado Doe, as the persons responsible for
the deaths of Vicente Bauzon and Elizer Tuliao.
Respondent Tuliao filed a criminal complaint for murder against
petitioners, Boyet dela Cruz, and Amado Doe, and submitted the sworn
confession of SPO2 Maderal. On 25 June 2001, Acting Presiding
Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners
and SPO2 Maderal.
On 29 June 2001, petitioners filed an urgent motion to complete
preliminary investigation, to reinvestigate, and to recall and/or quash the
warrants of arrest.
In the hearing of the urgent motion on 6 July 2001,
Judge Tumaliuan noted the absence of petitioners and issued a Joint
Order denying said urgent motion on the ground that, since the court did
not acquire jurisdiction over their persons, the motion cannot be properly
heard by the court. In the meantime, petitioners appealed the resolution
of State Prosecutor Leo T. Reyes to the Department of Justice.
On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took
over the case and issued a Joint Order reversing the Joint Order of
Judge Tumaliuan. Consequently, he ordered the cancellation of the
warrant of arrest issued against petitioner Miranda. He likewise applied
this Order to petitioners Ocon and Dalmacio in an Order dated 21
September 2001. State Prosecutor Leo S. Reyes and
respondent Tuliao moved for the reconsideration of the said Joint Order
and prayed for the inhibition of Judge Anghad, but the motion for
reconsideration was denied in a Joint Order dated 16 October 2001 and
the prayer for inhibition was denied in a Joint Order dated 22 October
2001.
On 25 October 2001, respondent Tuliao filed a petition
for certiorari, mandamus and prohibition with this Court, with prayer for
a Temporary Restraining Order, seeking to enjoin Judge Anghad from
further proceeding with the case, and seeking to nullify the Orders and
Joint Orders of Judge Anghad dated 17 August 2001, 21 September 2001,
16 October 2001, and 22 October 2001.
On 12 November 2001, this Court issued a Resolution resolving to grant
the prayer for a temporary restraining order against Judge Anghad from
further proceeding with the criminal cases. Shortly after the aforesaid
resolution, Judge Anghad issued a Joint Order dated 14 November
2001 dismissing the two Informations for murder against
petitioners. On 19 November 2001, this Court took note of respondents
cash bond evidenced by O.R. No. 15924532 dated 15 November 2001, and
issued the temporary restraining order while referring the petition to the
Court of Appeals for adjudication on the merits.
Respondent Tuliao filed with this Court a Motion to Cite Public
Respondent in Contempt, alleging that Judge Anghad deliberately and
willfully committed contempt of court when he issued on 15 November
2001 the Order dated 14 November 2001 dismissing the informations for
murder. On 21 November 2001, we referred said motion to the Court of
Appeals in view of the previous referral to it of respondents petition
for certiorari, prohibition and mandamus.
On 18 December 2002, the Court of Appeals rendered the assailed
decision granting the petition and ordering the reinstatement of the
criminal cases in the RTC of Santiago City, as well as the issuance of
warrants of arrest against petitioners and SPO2 Maderal. Petitioners
moved for a reconsideration of this Decision, but the same was denied in
a Resolution dated 12 June 2003.
Hence, this petition.
The facts of the case being undisputed, petitioners bring forth to this
Court the following assignments of error:
FIRST ASSIGNMENT OF ERROR
With all due respect, the Honorable Court of Appeals gravely erred in
reversing and setting aside the Joint Order of
Judge Anastacio D. Anghad dated August 17, 2001, September 21, 2001,
October 16, 2001 and November 14, 2001 issued in criminal cases
9
numbered 36-3523 and 36-3524; and, erred in upholding, affirming and
reinstating the Order dated July 6, 2001 issued by then Acting Presiding
Judge Wilfredo Tumaliuan, on the alleged rule that an accused cannot
seek any judicial relief if he does not submit his person to the jurisdiction
of the court.
SECOND ASSIGNMENT OF ERROR
With all due respect, the Honorable Court of Appeals gravely erred in
directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in
the docket of Active Criminal Cases of Branch 36 of the Regional Trial
Court of Santiago City, Philippines, and in ordering the public respondent
to re-issue the warrants of arrest against herein petitioners.
THIRD ASSIGNMENT OF ERROR
Wit all due respect, the Honorable Court of Appeals committed a
reversible error in ordering the reinstatement of Criminal Cases No. 36-
3523 and No. 36-3524 in the docket of active criminal cases of Branch 36
of the regional trial court of Santiago City, Philippines, and in ordering the
public respondent to issue warrants of arrest against herein petitioners,
the order of dismissal issued therein having become final and executory.
Adjudication of a motion to quash a warrant of arrest requires neither
jurisdiction over the person of the accused, nor custody of law over the
body of the accused.
The first assignment of error brought forth by the petitioner deals with
the Court of Appeals ruling that:
[A]n accused cannot seek any judicial relief if he does not submit his
person to the jurisdiction of the court. Jurisdiction over the person of the
accused may be acquired either through compulsory process, such as
warrant of arrest, or through his voluntary appearance, such as when he
surrenders to the police or to the court. It is only when the court has
already acquired jurisdiction over his person that an accused may invoke
the processes of the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M.
No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed
in the custody of the law before the court may validly act on his petition
for judicial reliefs.[3]
Proceeding from this premise, the Court of Appeals ruled that petitioners
Miranda, Ocon and Dalmacio cannot seek any judicial relief since they
were not yet arrested or otherwise deprived of their liberty at the time
they filed their Urgent Motion to complete preliminary investigation; to
reinvestigate; to recall and/or quash warrants of arrest.[4]
Petitioners counter the finding of the Court of Appeals by arguing that
jurisdiction over the person of the accused is required only in applications
for bail. Furthermore, petitioners argue, assuming that such jurisdiction
over their person is required before the court can act on their motion to
quash the warrant for their arrest, such jurisdiction over their person was
already acquired by the court by their filing of the above Urgent Motion.
In arguing that jurisdiction over the person is required only in the
adjudication of applications for bail, petitioners quote Retired Court of
Appeals Justice Oscar Herrera:
Except in applications for bail, it is not necessary for the court to first
acquire jurisdiction over the person of the accused to dismiss the case or
grant other relief. The outright dismissal of the case even before the court
acquires jurisdiction over the person of the accused is authorized under
Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the
Revised Rules on Summary Procedure (Sec. 12a).In Allado vs. Diokno (232
SCRA 192), the case was dismissed on motion of the accused for lack of
probable cause without the accused having been arrested. In Paul Roberts
vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the
issuance of a warrant of arrest in abeyance pending review by the
Secretary of Justice. And in Lacson vs. Executive Secretary (301 SCRA
102[5]), the Court ordered the case transferred from the Sandiganbayan to
the RTC which eventually ordered the dismissal of the case for lack of
probable cause.[6]
In arguing, on the other hand, that jurisdiction over their person was
already acquired by their filing of the above Urgent Motion, petitioners
invoke our pronouncement, through Justice Florenz D. Regalado,
in Santiago v. Vasquez[7]:
The voluntary appearance of the accused, whereby the court acquires
jurisdiction over his person, is accomplished either by his pleading to the
merits (such as by filing a motion to quash or other pleadings requiring
the exercise of the courts jurisdiction thereover, appearing for
arraignment, entering trial) or by filing bail. On the matter of bail, since
the same is intended to obtain the provisional liberty of the accused, as a
rule the same cannot be posted before custody of the accused has been
acquired by the judicial authorities either by his arrest or voluntary
surrender.
Our pronouncement in Santiago shows a distinction between custody of
the law and jurisdiction over the person. Custody of the law is required
before the court can act upon the application for bail, but is not required
for the adjudication of other reliefs sought by the defendant where the
mere application therefor constitutes a waiver of the defense of lack of
jurisdiction over the person of the accused.[8] Custody of the law is
accomplished either by arrest or voluntary surrender,[9] while jurisdiction
over the person of the accused is acquired upon his arrest or voluntary
appearance.[10] One can be under the custody of the law but not yet
subject to the jurisdiction of the court over his person, such as when a
person arrested by virtue of a warrant files a motion before arraignment
to quash the warrant. On the other hand, one can be subject to the
jurisdiction of the court over his person, and yet not be in the custody of
the law, such as when an accused escapes custody after his trial has
commenced.[11] Being in the custody of the law signifies restraint on the
person, who is thereby deprived of his own will and liberty, binding him
to become obedient to the will of the law.[12] Custody of the law is literally
custody over the body of the accused. It includes, but is not limited to,
detention.
The statement in Pico v. Judge Combong, Jr.,[13] cited by the Court of
Appeals should not have been separated from the issue in that case, which
is the application for admission to bail of someone not yet in the custody
of the law. The entire paragraph of our pronouncement in Pico reads:
A person applying for admission to bail must be in the custody of the law
or otherwise deprived of his liberty. A person who has not submitted
himself to the jurisdiction of the court has no right to invoke the processes
of that court. Respondent Judge should have diligently ascertained the
whereabouts of the applicant and that he indeed had jurisdiction over the
body of the accused before considering the application for bail.[14]
While we stand by our above pronouncement in Pico insofar as it
concerns bail, we clarify that, as a general rule, one who seeks an
affirmative relief is deemed to have submitted to the jurisdiction of the
court.[15] As we held in the aforecited case of Santiago, seeking an
affirmative relief in court, whether in civil or criminal proceedings,
constitutes voluntary appearance.
Pico deals with an application for bail, where there is the special
requirement of the applicant being in the custody of the law. In Feliciano
v. Pasicolan,[16] we held that [t]hepurpose of bail is to secure ones release
and it would be incongruous to grant bail to one who is free. Thus, bail is
the security required and given for the release of a person who is in the
custody of law. The rationale behind this special rule on bail is that it
discourages and prevents resort to the former pernicious practice
10
wherein the accused could just send another in his stead to post his bail,
without recognizing the jurisdiction of the court by his personal
appearance therein and compliance with the requirements therefor.[17]
There is, however, an exception to the rule that filing pleadings seeking
affirmative relief constitutes voluntary appearance, and the consequent
submission of ones person to the jurisdiction of the court. This is in the
case of pleadings whose prayer is precisely for the avoidance of the
jurisdiction of the court, which only leads to a special appearance. These
pleadings are: (1) in civil cases, motions to dismiss on the ground of lack
of jurisdiction over the person of the defendant, whether or not other
grounds for dismissal are included;[18] (2) in criminal cases, motions to
quash a complaint on the ground of lack of jurisdiction over the person of
the accused; and (3) motions to quash a warrant of arrest. The first two
are consequences of the fact that failure to file them would constitute a
waiver of the defense of lack of jurisdiction over the person. The third is a
consequence of the fact that it is the very legality of the court process
forcing the submission of the person of the accused that is the very issue
in a motion to quash a warrant of arrest.
To recapitulate what we have discussed so far, in criminal cases,
jurisdiction over the person of the accused is deemed waived by the
accused when he files any pleading seeking an affirmative relief, except in
cases when he invokes the special jurisdiction of the court by impugning
such jurisdiction over his person. Therefore, in narrow cases involving
special appearances, an accused can invoke the processes of the court
even though there is neither jurisdiction over the person nor custody of
the law. However, if a person invoking the special jurisdiction of the court
applies for bail, he must first submit himself to the custody of the law.
In cases not involving the so-called special appearance, the general rule
applies, i.e., the accused is deemed to have submitted himself to the
jurisdiction of the court upon seeking affirmative relief. Notwithstanding
this, there is no requirement for him to be in the custody of the law. The
following cases best illustrate this point, where we granted
various reliefs to accused who were not in the custody of the law, but
were deemed to have placed their persons under the jurisdiction of the
court. Note that none of these cases involve the application for bail, nor a
motion to quash an information due to lack of jurisdiction over the
person, nor a motion to quash a warrant of arrest:
1. In Allado v. Diokno,[19] on the prayer of the accused in a petition for
certiorari on the ground of lack of probable cause, we issued a temporary
restraining order enjoining PACC from enforcing the warrant of arrest and
the respondent judge therein from further proceeding with the case and,
instead, to elevate the records to us.
2. In Roberts, Jr. v. Court of Appeals,[20] upon the accuseds Motion to
Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of
Arrest on the ground that they filed a Petition for Review with the
Department of Justice, we directed respondent judge therein to cease and
desist from further proceeding with the criminal case and to defer the
issuance of warrants of arrests against the accused.
3. In Lacson v. Executive Secretary,[21] on the prayer of the accused in a
petition for certiorari on the ground of lack of jurisdiction on the part of
the Sandiganbayan, we directed the Sandiganbayan to transfer the
criminal cases to the Regional Trial Court even before the issuance of the
warrants of arrest.
We hold that the circumstances forcing us to require custody of the law
in applications for bail are not present in motions to quash the warrant of
arrest. If we allow the granting of bail to persons not in the custody of the
law, it is foreseeable that many persons who can afford the bail will
remain at large, and could elude being held to answer for the commission
of the offense if ever he is proven guilty. On the other hand, if we allow
the quashal of warrants of arrest to persons not in the custody of the law,
it would be very rare that a person not genuinely entitled to liberty would
remain scot-free. This is because it is the same judge who issued the
warrant of arrest who will decide whether or not he followed the
Constitution in his determination of probable cause, and he can easily
deny the motion to quash if he really did find probable cause after
personally examining the records of the case.
Moreover, pursuant to the presumption of regularity of official functions,
the warrant continues in force and effect until it is quashed and therefore
can still be enforced on any day and at any time of the day and
night.[22] Furthermore, the continued absence of the accused can be taken
against him in the determination of probable cause, since flight is
indicative of guilt.
In fine, as much as it is incongruous to grant bail to one who is free, it is
likewise incongruous to require one to surrender his freedom before
asserting it. Human rights enjoy a higher preference in the hierarchy of
rights than property rights,[23] demanding that due process in the
deprivation of liberty must come before its taking and not after.
Quashing a warrant of arrest based on a subsequently filed petition for
review with the Secretary of Justice and based on doubts engendered by
the political climate constitutes grave abuse of discretion.
We nevertheless find grave abuse of discretion in the assailed actions of
Judge Anghad. Judge Anghad seemed a little too eager of dismissing the
criminal cases against the petitioners.First, he quashed the standing
warrant of arrest issued by his predecessor because of a subsequently
filed appeal to the Secretary of Justice, and because of his doubts on the
existence of probable cause due to the political climate in the city. Second,
after the Secretary of Justice affirmed the prosecutors resolution, he
dismissed the criminal cases on the basis of a decision of this Court in
another case with different accused, doing so two days after this Court
resolved to issue a temporary restraining order against further proceeding
with the case.
After Judge Tumaliuan issued warrants for the arrest of petitioners,
petitioner Miranda appealed the assistant prosecutors resolution before
the Secretary of Justice. Judge Anghad, shortly after assuming office,
quashed the warrant of arrest on the basis of said appeal. According to
Judge Anghad, x x x prudence dictates (that) and because of comity, a
deferment of the proceedings is but proper.[24]
Quashal on this basis is grave abuse of discretion. It is inconceivable to
charge Judge Tumaliuan as lacking in prudence and oblivious to comity
when he issued the warrants of arrest against petitioners just because the
petitioners might, in the future, appeal the assistant prosecutors
resolution to the Secretary of Justice. But even if the petition for review
was filed before the issuance of the warrants of arrest, the fact remains
that the pendency of a petition for the review of the prosecutors
resolution is not a ground to quash the warrants of arrest.
In Webb v. de Leon,[25] we held that the petitioners therein cannot assail
as premature the filing of the information in court against them on the
ground that they still have the right to appeal the adverse resolution of
the DOJ Panel to the Secretary of Justice. Similarly, the issuance of
warrants of arrest against petitioners herein should not have been
quashed as premature on the same ground.
The other ground invoked by Judge Anghad for the quashal of the warrant
of arrest is in order if true: violation of the Constitution. Hence,
Judge Anghad asked and resolved the question:
In these double murder cases, did this Court comply or adhere to the
above-quoted constitutional proscription, which is Sec. 2, Article III Bill of
Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the
above-cited decisional cases? To this query or issue, after a deep perusal
of the arguments raised, this Court, through [its] regular Presiding Judge,
finds merit in the contention of herein accused-movant,
Jose Pempe Miranda.[26]
Judge Anghad is referring to the following provision of the Constitution as
having been violated by Judge Tumaliuan:
11

Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination 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.[27]
However, after a careful scrutiny of the records of the case, including the
supporting evidence to the resolution of the prosecutor in his
determination of probable cause, we find that Judge Anghad gravely
abused his discretion.
According to petitioners:
In this case, the nullity of the order of Judge Tumaliuan, for the arrest of
the petitioners is apparent from the face of the order itself, which clearly
stated that the determination of probable cause was based on the
certification, under oath, of the fiscal and not on a separate determination
personally made by the Judge. No presumption of regularity could be
drawn from the order since it expressly and clearly showed that it was
based only on the fiscals certification.[28]
Petitioners claim is untrue. Judge Tumaliuans Joint Order contains no such
indication that he relied solely on the prosecutors certification. The Joint
Order even indicated the contrary:
Upon receipt of the information and resolution of the prosecutor, the
Court proceeded to determine the existence of a probable cause by
personally evaluating the records x x x.[29]
The records of the case show that the prosecutors certification was
accompanied by supporting documents, following the requirement
under Lim, Sr. v. Felix[30] and People v. Inting.[31] The supporting
documents are the following:
1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes;
2. Affidavit dated 22 May 2001 of Modesto Gutierrez;
3. Affidavit dated 19 May 2001 of Romeo B. Ocon;
4. Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C. Miranda
and Reynaldo de la Cruz;
5. Affidavit dated 19 May 2001 of Alberto Dalmacio;
6. Decision dated 22 April 1999 of the Regional Trial Court of Manila,
Branch 41 in Criminal Case No. 97-160355;
7. Sworn statement dated 27 April 2001 of Rodel Maderal;
8. Information dated 22 June 2001;
9. Affidavit-complaint of Virgilio Tuliao; and
10. Medico-legal Reports of the cadavers of Elezer Tuliao and
Vicente Buazon.
Hence, procedurally, we can conclude that there was no violation on the
part of Judge Tumaliuan of Article III, Section 2, of the
Constitution. Judge Anghad, however, focused on the substantive part of
said section, i.e., the existence of probable cause. In failing to find
probable cause, Judge Anghad ruled that the confession of
SPO2 Maderal is incredible for the following reasons: (1) it was given after
almost two years in the custody of the National Bureau of Investigation;
(2) it was given by someone who rendered himself untrustworthy for
being a fugitive for five years; (3) it was given in exchange for an obvious
reward of discharge from the information; and (4) it was given during the
election period amidst a politically charged scenario where Santiago City
voters were pitted against each other along the lines of the Miranda camp
on one side and former City Mayor Amelita S. Navarro, and allegedly that
of DENR Secretary Heherson Alvarez on the other.[32]
We painstakingly went through the records of the case and found no
reason to disturb the findings of probable cause of Judge Tumaliuan.
It is important to note that an exhaustive debate on the credibility of a
witness is not within the province of the determination of probable
cause. As we held in Webb[33]:
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 x x x conviction. A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
x x x Probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part
of trial x x x.
Dismissing a criminal case on the basis of a decision of this Court in
another case with different accused constitutes grave abuse of discretion.
Judge Anghad had quashed the warrant of arrest on the ground, among
other things, that there was a petition for review of the assistant
prosecutors resolution before the Secretary of Justice. However, after the
Secretary of Justice affirmed the prosecutors resolution,
Judge Anghad summarily dismissed the two criminal cases against the
petitioners on the basis of the following explanation:
Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al.,
RTC, Branch 41, Manila, and based from his sworn statements, he
pinpointed to Mr. Miranda the mastermind and with him and the other
police officers as the direct perpetrators, the October 9, 2001 Decision of
the Supreme Court absolving the five cops of murder, certainly makes his
sworn Statements a narration of falsehood and lies and that because of
the decision acquitting said officers who were likewise falsely linked by
said Rodel Maderal in his April 27, 2001 statements, it is now beyond
doubt that Rodel Maderal made untruthful, fabricated and perjured
statements and therefore the same is without probable value. This Court
agrees with the defenses views. Indeed, of what use
is Maderals statements when the Supreme Court rejected the
prosecutions evidence presented and adduced in Criminal Case No. 97-
160355. Rodel Maderal is supposed to turn state witness in these two (2)
cases but with the Supreme Court decision adverted to, the probative
value of his statements is practically nil.
xxxx
This Court finds merit to the manifestation of the accused Miranda dated
October 18, 2001, praying for the summary dismissal of the two (2)
murder charges in view of the latest decision of the Supreme Court
in People of the Philippines vs. Wilfredo Leao, et al., G.R. No. 13886,
acquitting the accused therein and in effect disregarding all the evidence
presented by the prosecution in that case. Accordingly, the two
(2) informations [for] murder filed against Jose Miranda are ordered
dismissed.[34]
This is a clear case of abuse of discretion. Judge Anghad had no right to
twist our decision and interpret it to the discredit of SPO2 Maderal, who
was still at large when the evidence of the prosecution in the Leao case
was presented. A decision, even of this Court, acquitting the accused
therein of a crime cannot be the basis of the dismissal of criminal case
against different accused for the same crime. The blunder of
Judge Anghad is even more pronounced by the fact that our decision
12
in Leao was based on reasonable doubt. We never ruled in Leaothat the
crime did not happen; we just found that there was reasonable doubt as
to the guilt of the accused therein, since the prosecution in that case relied
on circumstantial evidence, which interestingly is not even the situation
in the criminal cases of the petitioners in the case at bar as there is here
an eyewitness: Rodel Maderal. The accused in Leao furthermore had no
motive to kill respondent Tuliaos son, whereas petitioners herein had
been implicated in the testimony of respondent Tuliao before the Senate
Blue Ribbon Committee.
It is preposterous to conclude that because of our finding of reasonable
doubt in Leao, it is now beyond doubt that Rodel Maderal made
untruthful, fabricated and perjured statements and therefore the same is
without probable value.[35] On the contrary, if we are to permit the use of
our decision in Leao, an acquittal on the ground of reasonable doubt
actually points to the probability of the prosecutions version of the facts
therein. Such probability of guilt certainly meets the criteria of probable
cause.
We cannot let unnoticed, too, Judge Anghads dismissal of
the informations two days after we resolved to issue, upon the filing of a
bond, a temporary restraining order prohibiting him from further
proceeding with the case. The bond was filed the day after
the informations were dismissed. While the dismissal of the case was able
to beat the effectivity date of the temporary restraining order, such
abrupt dismissal of the informations (days after this Courts resolve to
issue a TRO against Judge Anghad) creates wild suspicions about the
motives of Judge Anghad.
Nullification of a proceeding necessarily carries with it the reinstatement
of the orders set aside by the nullified proceeding.
In their second assignment of error, petitioners claim that the Court of
Appeals did not recall or reinstate the warrants of arrest issued by
Judge Tumaliuan, but instead directed Judge Anghad to issue apparently
new warrants of arrest.[36] According to the petitioners, it was an error for
the Court of Appeals to have done so, without a personal determination
of probable cause.
We disagree. Whether the Court of Appeals ordered the issuance of new
warrants of arrest or merely ordered the reinstatement of the warrants
of arrest issued by Judge Tumaliuan is merely a matter of scrupulous
semantics, the slight inaccuracy whereof should not be allowed to affect
the dispositions on the merits, especially in this case where the other
dispositions of the Court of Appeals point to the other direction. Firstly,
the Court of Appeals had reinstated the 25 June 2001 Order of
Judge Tumaliuan,[37] which issued the warrants of arrest.Secondly, the
Court of Appeals likewise declared the proceedings conducted by
Judge Anghad void. Certainly, the declaration of nullity of proceedings
should be deemed to carry with it the reinstatement of the orders set
aside by the nullified proceedings. Judge Anghads order quashing the
warrants of arrest had been nullified; therefore those warrants of arrest
are henceforth deemed unquashed.
Even if, however, the Court of Appeals had directed the issuance of new
warrants of arrest based on a determination of probable cause, it would
have been legally permissible for them to do so. The records of the
preliminary investigation had been available to the Court of Appeals, and
are also available to this Court, allowing both the Court of Appeals and
this Court to personally examine the records of the case and not merely
rely on the certification of the prosecutor. As we have ruled
in Allado v. Diokno and Roberts v. Court of Appeals, the determination of
probable cause does not rest on a subjective criteria. As we had resolved
in those cases to overrule the finding of probable cause of the judges
therein on the ground of grave abuse of discretion, in the same vein, we
can also overrule the decision of a judge reversing a finding of probable
cause, also on the ground of grave abuse of discretion.
There is no double jeopardy in the reinstatement of a criminal case
dismissed before arraignment
In their third assignment of error, petitioners claim that the Court of
Appeals committed a reversible error in ordering the reinstatement of
Criminal Cases No. 36-3523 and No. 36-3524, alleging that the order of
dismissal issued therein had become final and executory. According to
petitioners:
It is also worthy to point out at this juncture that the Joint Order of
Judge Anghad dated November 14, 2001 is NOT ONE of those Orders
which were assailed in the private respondent Tuliaos Petition for
Certiorari, Mandamus and Prohibition filed by the private respondent
before the Court of Appeals. As carefully enumerated in the first page of
the assailed Decision, only the following Orders issued by
Judge Anghad were questioned by private respondent, to wit:
1.) Joint Order dated August 17, 2001;
2.) Order dated September 21, 2001;
3.) Joint Order dated October 16, 2001; and
4.) Joint Order dated October 22, 2001.
Obviously, the Joint Order dated November 14, 2001 of Judge Anghad,
which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is
NOT included in the list of the assailed Order/Joint Orders. Hence, the
Court of Appeals should not have passed upon the validity or nullity of the
Joint Order of November 14, 2001.[38]
Petitioners must have forgotten that respondent Tuliaos Petition for
Certiorari, Prohibition and Mandamus was filed not with the Court of
Appeals, but with this Court. The Court of Appeals decided the case
because we referred the same to them in our 19 November
2001 Resolution. Such petition was filed on 25 October 2001, around
three weeks before the 14 November 2001 Order. Upon receipt of the 14
November 2001 Order, however, respondent Tuliao lost no time in filing
with this Court a Motion to Cite Public Respondent in Contempt, alleging
that Judge Anghad deliberately and willfully committed contempt of court
when he issued on 15 November 2001 the Order dated 14 November 2001
dismissing the informationsfor murder. On 21 November 2001, we
referred said motion to the Court of Appeals, in view of the previous
referral of respondent Tuliaos petition for certiorari, prohibition
and mandamus.
Our referral to the Court of Appeals of the Motion to Cite
Public Repondent in Contempt places the 14 November 2001 Order
within the issues of the case decided by the Court of Appeals. In claiming
that Judge Anghad committed contempt of this Court in issuing the 14
November 2001 Order, respondent Tuliao had ascribed to
Judge Anghad an act much more serious than grave abuse of discretion.
Respondent Tuliao claims that Judge Anghad issued the 14 November
2001 Order on 15 November 2001, antedating it so as to avoid the effects
of our 12 November 2001 Resolution. In said 12 November
2001 Resolution, we resolved to issue a temporary restraining order
enjoining Judge Anghad from further proceeding with the criminal cases
upon the respondent Tuliaos filing of a bond in the amount
of P20,000.00. Respondent Tuliao had filed the bond on 15 November
2005.
While we cannot immediately pronounce Judge Anghad in contempt,
seeing as disobedience to lawful orders of a court and abuse of court
processes are cases of indirect contempt which require the granting of
opportunity to be heard on the part of respondent,[39] the prayer to cite
public respondent in contempt and for other reliefs just and equitable
under the premisesshould be construed to include a prayer for the
nullification of said 14 November 2001 Order.
In any case, the reinstatement of a criminal case dismissed before
arraignment does not constitute double jeopardy. Double jeopardy
cannot be invoked where the accused has not been arraigned and it was
upon his express motion that the case was dismissed.[40]
13
As to respondent Tuliaos prayer (in both the original petition
for certiorari as well as in his motion to cite for contempt) to disqualify
Judge Anghad from further proceeding with the case, we hold that the
number of instances of abuse of discretion in this case are enough to
convince us of an apparent bias on the part of Judge Anghad. We further
resolve to follow the case of People v. SPO1 Leao,[41] by transferring the
venue of Criminal Cases No. 36-3523 and No. 36-3524 to the City
of Manila, pursuant to Article VIII, Section 4, of the Constitution.
WHEREFORE, the petition is DENIED. The Decision dated 18 December
2002 and the Resolution dated 12 June 2003 of the Court of Appeals are
hereby AFFIRMED, with the modification that Criminal Cases No. 36-3523
and No. 36-3524 be transferred to and raffled in the Regional Trial Court
of the City of Manila. In this connection,

1) Let a copy of this decision be furnished the Executive Judge of the

RTC of the City of Santiago, Isabela, who is directed to effect the transfer
of the cases within ten (10) days after receipt hereof;
2) The Executive Judge of the RTC of the City of Santiago, Isabela, is
likewise directed to report to this Court compliance hereto within ten (10)
days from transfer of these cases;
3) The Executive Judge of the City of Manila shall proceed to raffle the
criminal cases within ten (10) days from the transfer;
4) The Executive Judge of the City of Manila is likewise directed to
report to this Court compliance with the order to raffle within ten (10)
days from said compliance; and
5) The RTC Judge to whom the criminal cases are raffled is directed to
act on said cases with reasonable dispatch.
6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith
warrants of arrest for the apprehension of petitioners Jose C. Miranda,
Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel T. Maderal,
conformably with the decision of the Court of Appeals dated 18 December
2002.

The Temporary Restraining Order issued by this Court dated 4 August

2003 is hereby LIFTED. Costs against Petitioners.

SO ORDERED.

14
THIRD DIVISION
[G.R. No. 169588. October 7, 2013.]
JADEWELL PARKING SYSTEMS CORPORATION represented by its
manager and authorized representative Norma Tan, petitioner, vs. HON.
JUDGE NELSON F. LIDUA SR., Presiding Judge of the Municipal Trial Court
Branch 3, Baguio City, BENEDICTO BALAJADIA, EDWIN ANG, "JOHN
DOES" and "PETER DOES",respondents.
DECISION
LEONEN, J p:
We are asked to rule on this Petition for Review on Certiorari under Rule
45 of the Rules of Court, praying that the assailed Decision of Branch 7 of
the Regional Trial Court of Baguio City and Order dated August 15, 2005
be reversed and that Criminal Case Nos. 112934 and 112935 be ordered
reinstated and prosecuted before the Municipal Trial Court of Baguio
City.
Petitioner Jadewell Parking Systems Corporation is a private parking
operator duly authorized to operate and manage the parking spaces in
Baguio City pursuant to City Ordinance 003-2000. It is also authorized
under Section 13 of the City Ordinance to render any motor vehicle
immobile by placing its wheels in a clamp if the vehicle is illegally parked. 1
According to the Resolution of the Office of the Provincial Prosecutor, San
Fernando City, La Union, the facts leading to the filing of the Informations
are the following:
Jadewell Parking Systems Corporation (Jadewell), thru [sic] its General
Manager Norma Tan and Jadewell personnel Januario S. Ulpindo and
Renato B. Dulay alleged in their affidavit-complaint that on May 17, 2003,
the respondents in I.S. No. 2003-1996 Edwin Ang, Benedicto Balajadia and
John Doe dismantled, took and carried away the clamp attached to the
left front wheel of a Mitsubishi Adventure with Plate No. WRK 624 owned
by Edwin Ang. Accordingly, the car was then illegally parked and [left]
unattended at a Loading and Unloading Zone. The value of the clamp
belonging to Jadewell which was allegedly forcibly removed with a piece
of metal is P26,250.00. The fines of P500.00 for illegal parking and the
declamping fee of P500.00 were also not paid by the respondents herein.
In I.S. No. 2003-1997, Jadewell thru [sic] its General Manager Norina C.
Tan, Renato B. Dulay and Ringo Sacliwan alleged in their affidavit-
complaint that on May 7, 2003, along Upper Mabini Street, Baguio City,
herein respondents Benedicto Balajadia, Jeffrey Walan and two (2) John
Does forcibly removed the clamp on the wheel of a Nissan Cefiro car with
Plate No. UTD 933, belonging to Jeffrey Walan which was then considered
illegally parked for failure to pay the prescribed parking fee. Such car was
earlier rendered immobile by such clamp by Jadewell personnel. After
forcibly removing the clamp, respondents took and carried it away
depriving its owner, Jadewell[,] its use and value which is P26,250.00.
According to complainants, the fine of P500.00 and the declamping fee of
P500.00 were not paid by the respondents. 2
The incident resulted in two cases filed by petitioner and respondents
against each other. Petitioner Jadewell filed two cases against
respondents: Robbery under I.S. Nos. 2003-1996 and 2003-1997.
Petitioner filed an Affidavit-Complaint against respondents Benedicto
Balajadia, Jeffrey Walan, and three (3) John Does, one of whom was
eventually identified as respondent Ramon Ang. The Affidavit-Complaint
was filed with the Office of the City Prosecutor of Baguio City on May 23,
2003. 3 A preliminary investigation took place on May 28, 2003.
Respondent Benedicto Balajadia likewise filed a case
charging Jadewell president, Rogelio Tan, and four (4) of Jadewell's
employees with Usurpation of Authority/Grave Coercion in I.S. No. 2003-
1935. cCHETI
In his Counter-affidavit for the two cases he filed for himself and on behalf
of his co-respondents, respondent Benedicto Balajadia denied that his car
was parked illegally. He admitted that he removed the clamp restricting
the wheel of his car since he alleged that the placing of a clamp on the
wheel of the vehicle was an illegal act. He alleged further that he removed
the clamp not to steal it but to remove the vehicle from its clamp so that
he and his family could continue using the car. He also confirmed that he
had the clamp with him, and he intended to use it as a piece of evidence
to support the Complaint he filed against Jadewell. 4
In the Resolution 5 of the Office of the Provincial Prosecutor of San
Fernando City, La Union, Acting City Prosecutor Mario Anacleto Banez
found probable cause to file a case of Usurpation of Authority against the
petitioner. Regarding the case of Robbery against respondents,
Prosecutor Banez stated that:
We find no probable cause to charge respondents in these two (2) cases
for the felony of Robbery. The elements of Robbery, specifically the intent
to gain and force upon things are absent in the instant cases, thereby
negating the existence of the crime.
xxx xxx xxx
We, however, respectfully submit that the acts of respondents in
removing the wheel clamps on the wheels of the cars involved in these
cases and their failure to pay the prescribed fees were in violation of Sec.
21 of Baguio City Ordinance No. 003-2000 which prescribes fines and
penalties for violations of the provisions of such ordinance. Certainly,
they should not have put the law into their own hands. (Emphasis
supplied)
WHEREFORE, premises considered, there is probable cause against all the
respondents, except Jeffrey Walan or Joseph Walan (who has been
dragged into this controversy only by virtue of the fact that he was still
the registered owner of the Nissan Cefiro car) for violation of Section 21
of City Ord. No. 003-2000 in both cases and we hereby file the
corresponding informations against them in Court. 6
Prosecutor Banez issued this Resolution on July 25, 2003.
On October 2, 2003, two criminal Informations were filed with the
Municipal Trial Court of Baguio City dated July 25, 2003, stating:
That on May 17, 2003 at Baguio City and within the jurisdiction of this
Honorable Court, the above-named accused with unity of action and
concerted design, did then and there, with unity of action and concerted
design, willfully, unlawfully and feloniously forcibly dismantled [sic] and
took [sic] an immobilizing clamp then attached to the left front wheel of a
Mitsubishi Adventure vehicle with Plate No. WRK 624 belonging to Edwin
Ang which was earlier rendered immobilized by such clamp
by Jadewell Personnel's for violation of the Baguio City Ordinance No.
003-2600 to the damage and prejudice of private
complainant Jadewell Parking System Corporation (Jadewell) which owns
such clamp worth P26,250.00 and other consequential damages.
CONTRARY TO LAW,
San Fernando City, La Union for Baguio City, this 25th day of July 2003. 7
The cases were docketed as Criminal Case Nos. 112934 and 112935 with
the Municipal Trial Court of Baguio City, Branch 3. Respondent Benedicto
Balajadia and the other accused through their counsel Paterno Aquino
filed a January 20, 2004 Motion to Quash and/or Manifestation 8 on
February 2, 2004. The Motion to Quash and/or Manifestation sought the
quashal of the two Informations on the following grounds:
extinguishment of criminal action or liability due to prescription; failure of
the Information to state facts that charged an offense; and the imposition
of charges on respondents with more than one offense.
15
In their Motion to Quash, respondents argued that:
1. The accused in this case are charged with violation of Baguio City
Ordinance No. 003-2000.
2. Article 89 of the Revised Penal [sic] provides that criminal liability is
totally extinguished by prescription of the crime.
3. Act No. 3326, as amended by Act No. 3763, provides:
"Section 1.. . . Violations penalized by municipal ordinances shall
prescribed [sic] after two months."
4. As alleged in the Information, the offense charged in this case was
committed on May 7, 2003.
5. As can be seen from the right hand corner of the Information, the latter
was filed with this Honorable Court on October 2, 2003, almost five (5)
months after the alleged commission of the offense charged. Hence,
criminal liability of the accused in this case, if any, was already
extinguished by prescription when the Information was filed. 9
In an Order 10 dated February 10, 2004, respondent Judge Nelson F.
Lidua, Sr., Presiding Judge of the Municipal Trial Court of Baguio City,
Branch 3, granted the accused's Motion to Quash and dismissed the cases.
Petitioner filed a Motion for Reconsideration on February 27, 2004
responding to the February 10, 2004 Order 11 to argue among other
points that:
6.b. For another, the offenses charged have not yet prescribed. Under the
law, the period of prescription of offenses shall be interrupted by the filing
of the complaint or information. While it may be true that
the Informations in these cases have been filed only on October 2, 2003,
the private complainant has, however, filed its criminal complaint on May
23, 2003, well within the prescribed period. 12
Respondents filed their Opposition 13 on March 24, 2004, and petitioner
filed a Reply 14 on April 1, 2004.
The respondent judge released a Resolution 15 dated April 16, 2004
upholding the Order granting respondents' Motion to Quash. The
Resolution held that:
For the guidance of the parties, the Court will make an extended
resolution on one of the ground [sic] for the motion to quash, which is
that the criminal action has been extinguished on grounds of prescription.
These offenses are covered by the Rules on Summary Procedure being
alleged violations of City Ordinances.
Under Section 9 of the Rule [sic] on Summary Procedure, the running of
the prescriptive period shall be halted on the date the case is filed in Court
and not on any date before that (Zaldivia vs. Reyes, Jr., G.R. No. 102342,
July 3, 1992, En Banc). SCEDAI
In case of conflict, the Rule on Summary Procedure as the special law
prevails over Sec. 1 of Rule 110 of the Rules on Criminal Procedure and
also Rule 110 of the Rules of Criminal Procedure must yield to Act No.
3326 or "AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL ORDINANCES
AND TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO RUN" (Ibid.).
Petitioner then filed a Petition 16 for Certiorari under Rule 65 with the
Regional Trial Court of Baguio City. The case was raffled to Branch 7 of the
Regional Trial Court of Baguio City. Petitioners contended that the
respondent judge committed grave abuse of discretion amounting to lack
or excess of jurisdiction in dismissing Criminal Case Nos. 112934 and
112935 on the ground of prescription. Petitioners argued that the
respondent judge ruled erroneously saying that the prescriptive period for
the offenses charged against the private respondents was halted by the
filing of the Complaint/Information in court and not when the Affidavit-
Complaints were filed with the Office of the City Prosecutor of Baguio City.
Petitioner cited Section 1 of Rule 110 of the Rules on Criminal Procedure:
. . . "[c]riminal actions shall be instituted . . . [i]n . . . other chartered cities,
the complaint shall be filed with the office of the prosecutor unless
otherwise provided in their charter" and the last paragraph thereof states
that "[t]he institution of the criminal action shall interrupt the running of
the period of prescription of the offense charged unless otherwise
provided in special laws." 17
Petitioner contended further that:
[the] filing of the criminal complaint with the Office of the City Prosecutor
of Baguio City, not the filing of the criminal information before this
Honorable Court, is the reckoning point in determining whether or not the
criminal action in these cases had prescribed.
xxx xxx xxx
The offenses charged in Criminal Case Nos. 112934 and 112935 are
covered by the Revised Rules on Summary Procedure, not by the old Rules
on Summary Procedure. Considering that the offenses charged are for
violations of a City Ordinance, the criminal cases can only be commenced
by informations. Thus, it was only legally and procedurally proper for the
petitioner to file its complaint with the Office of the City Prosecutor of
Baguio City as required by Section 11 of the new Rules on Summary
Procedure, these criminal cases "shall be commenced only by
information." These criminal cases cannot be commenced in any other
way.
Moreover, the ruling of the Supreme Court in Zaldivia vs. Reyes cited in
the assailed Resolution does not apply in this case. The offense charged
in Zaldivia is [a] violation of municipal ordinance in which case, the
complaint should have been filed directly in court as required by Section
9 of the old Rules on Summary Procedure. On the other hand, Criminal
Case Nos. 112934 and 112935 are for violations of a city ordinance and as
aforestated, "shall be commenced only by information." 18
Thus, petitioner contended that the filing of the criminal complaint with
the Office of the City Prosecutor stopped the running of the two-month
prescriptive period. Hence, the offenses charged have not prescribed.
In their Comment, 19 respondents maintained that the respondent judge
did not gravely abuse his discretion. They held that Section 2 of Act No.
3326, as amended, provides that:
Sec. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceeding for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy. 20 (Emphasis
supplied)
Respondents argued that Zaldivia v. Reyes 21 held that the proceedings
mentioned in Section 2 of Act No. 3326, as amended, refer to judicial
proceedings. Thus, this Court, in Zaldivia, held that the filing of the
Complaint with the Office of the Provincial Prosecutor was not a judicial
proceeding. The prescriptive period commenced from the alleged date of
the commission of the crime on May 7, 2003 and ended two months after
on July 7, 2003. Since the Informations were filed with the Municipal Trial
Court on October 2, 2003, the respondent judge did not abuse its
discretion in dismissing Criminal Case Nos. 112934 and 112935.
In a Decision dated April 20, 2005, the Regional Trial Court of Baguio City
Branch 7, through Judge Clarence F. Villanueva, dismissed the Petition
16
for Certiorari. The Regional Trial Court held that, since cases of city
ordinance violations may only be commenced by the filing of an
Information, then the two-month prescription period may only be
interrupted by the filing of Informations (for violation of City Ordinance
003-2000) against the respondents in court. The Regional Trial Court of
Baguio City, Branch 7, ruled in favor of the respondents and upheld the
respondent judge's Order dated February 10, 2004 and the Resolution
dated April 16, 2004.
Petitioners then filed a May 17, 2005 Motion for Reconsideration which
was denied by the Regional Trial Court in an August 15, 2005 Order.
Hence, this Petition.
The principal question in this case is whether the filing of the Complaint
with the Office of the City Prosecutor on May 23, 2003 tolled the
prescription period of the commission of the offense charged against
respondents Balajadia, Ang, "John Does," and "Peter Does."
Petitioner contends that the prescription period of the offense in Act No.
3326, as amended by Act No. 3763, does not apply because respondents
were charged with the violation of a city ordinance and not a municipal
ordinance. In any case, assuming arguendo that the prescriptive period is
indeed two months, filing a Complaint with the Office of the City
Prosecutor tolled the prescription period of two months. This is because
Rule 110 of the Rules of Court provides that, in Manila and in other
chartered cities, the Complaint shall be filed with the Office of the
Prosecutor unless otherwise provided in their charters.
In their Comment, 22 respondents maintain that respondent Judge Lidua
did not err in dismissing the cases based on prescription. Also,
respondents raise that the other grounds for dismissal they raised in their
Motion to Quash, namely, that the facts charged constituted no offense
and that respondents were charged with more than one offense, were
sustained by the Metropolitan Trial Court. Also, respondents argue that
petitioner had no legal personality to assail the Orders, since Jadewell was
not assailing the civil liability of the case but the assailed Order and
Resolution. This was contrary to the ruling in People v. Judge
Santiago 23 which held that the private complainant may only appeal the
civil aspect of the criminal offense and not the crime itself.
In the Reply, 24 petitioner argues that the respondent judge only
dismissed the case on the ground of prescription, since the Resolution
dated April 16, 2004 only cited that ground. The Order dated February 10,
2004 merely stated but did not specify the grounds on which the cases
were dismissed. Petitioner also maintains that the proceedings
contemplated in Section 2 of Act No. 3326 must include the preliminary
investigation proceedings before the National Prosecution Service in light
of the Rules on Criminal Procedure25 and Revised Rules on Summary
Procedure. AaCTcI
Lastly, petitioner maintains that it did have legal personality, since in a
Petition for Certiorari, "persons aggrieved . . . may file a verified
petition" 26 before the court.
The Petition is denied.
The resolution of this case requires an examination of both the
substantive law and the procedural rules governing the prosecution of the
offense. With regard to the prescription period, Act No. 3326, as
amended, is the only statute that provides for any prescriptive period for
the violation of special laws and municipal ordinances. No other special
law provides any other prescriptive period, and the law does not provide
any other distinction. Petitioner may not argue that Act No. 3326 as
amended does not apply.
In Romualdez v. Hon. Marcelo, 27 this Court defined the parameters of
prescription:
[I]n resolving the issue of prescription of the offense charged, the
following should be considered: (1) the period of prescription for the
offense charged; (2) the time the period of prescription starts to run; and
(3) the time the prescriptive period was interrupted. 28 (Citation omitted)
With regard to the period of prescription, it is now without question that
it is two months for the offense charged under City Ordinance 003-2000.
The commencement of the prescription period is also governed by
statute. Article 91 of the Revised Penal Code reads:
Art. 91.Computation of prescription of offenses. — The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and
shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
The offense was committed on May 7, 2003 and was discovered by the
attendants of the petitioner on the same day. These actions effectively
commenced the running of the prescription period.
The procedural rules that govern this case are the 1991 Revised Rules on
Summary Procedure.
SECTION 1. Scope. — This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal Circuit Trial Courts in the
following cases falling within their jurisdiction:
xxx xxx xxx
B.Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances
(Emphasis supplied)
Section 11 of the Rules provides that:
Sec. 11. How commenced. — The filing of criminal cases falling within the
scope of this Rule shall be either by complaint or by
information: Provided, however, that in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by information,
except when the offense cannot be prosecuted de officio.
The Local Government Code provides for the classification of cities.
Section 451 reads:
SEC. 451. Cities, Classified. — A city may either be component or highly
urbanized: Provided, however, that the criteria established in this Code
shall not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose
charters prohibit their voters from voting for provincial elective officials.
Independent component cities shall be independent of the province.
Cities in the Philippines that were created by law can either be highly
urbanized cities or component cities. An independent component city has
a charter that proscribes its voters from voting for provincial elective
officials. It stands that all cities as defined by Congress are chartered cities.
In cases as early as United States v. Pascual Pacis, 29 this Court recognized
the validity of the Baguio Incorporation Act or Act No. 1963 of 1909,
otherwise known as the charter of Baguio City.
As provided in the Revised Rules on Summary Procedure, only the filing of
an Information tolls the prescriptive period where the crime charged is
17
involved in an ordinance. The respondent judge was correct when he
applied the rule in Zaldivia v. Reyes.
In Zaldivia v. Reyes, the violation of a municipal ordinance in Rodriguez,
Rizal also featured similar facts and issues with the present case. In that
case, the offense was committed on May 11, 1990. The Complaint was
received on May 30, 1990, and the Information was filed with the
Metropolitan Trial Court of Rodriguez on October 2, 1990. This Court
ruled that:
As it is clearly provided in the Rule on Summary Procedure that among the
offenses it covers are violations of municipal or city ordinances, it should
follow that the charge against the petitioner, which is for violation of a
municipal ordinance of Rodriguez, is governed by that rule and not Section
1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling under
the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial
Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting
in such courts:
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding four years and two months, or a fine of
not more than four thousand pesos, or both such fine and imprisonment,
regardless of other imposable accessory or other penalties, including the
civil liability arising from such offenses or predicated thereon, irrespective
of kind, nature, value, or amount thereof; Provided, however, That in
offenses involving damage to property through criminal negligence they
shall have exclusive original jurisdiction where the imposable fine does
not exceed twenty thousand pesos.
These offenses are not covered by the Rules on Summary Procedure.
Under Section 9 of the Rules on Summary Procedure, "the complaint or
information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation." Both parties agree
that this provision does not prevent the prosecutor from conducting a
preliminary investigation if he wants to. However, the case shall be
deemed commenced only when it is filed in court, whether or not the
prosecution decides to conduct a preliminary investigation. This means
that the running of the prescriptive period shall be halted on the date the
case is actually filed in court and not on any date before that. STECAc
This interpretation is in consonance with the afore-quoted Act No.
3326 which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings
referred to in Section 2 thereof are "judicial proceedings," contrary to the
submission of the Solicitor General that they include administrative
proceedings. His contention is that we must not distinguish as the law
does not distinguish. As a matter of fact, it does.
At any rate, the Court feels that if there be a conflict between the Rule on
Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal
Procedure, the former should prevail as the special law. And if there be a
conflict between Act No. 3326 and Rule 110 of the Rules on Criminal
Procedure, the latter must again yield because this Court, in the exercise
of its rule-making power, is not allowed to "diminish, increase or modify
substantive rights" under Article VIII, Section 5(5) of the Constitution.
Prescription in criminal cases is a substantive right. 30
Jurisprudence exists showing that when the Complaint is filed with the
Office of the Prosecutor who then files the Information in court, this
already has the effect of tolling the prescription period. The recent People
v. Pangilinan 31 categorically stated that Zaldivia v. Reyes is not
controlling as far as special laws are concerned. Pangilinan referred to
other cases that upheld this principle as well. However, the doctrine
of Pangilinan pertains to violations of special laws but not to ordinances.
There is no distinction between the filing of the Information contemplated
in the Rules of Criminal Procedure and in the Rules of Summary
Procedure. When the representatives of the petitioner filed the Complaint
before the Provincial Prosecutor of Baguio, the prescription period was
running. It continued to run until the filing of the Information. They had
two months to file the Information and institute the judicial proceedings
by filing the Information with the Municipal Trial Court. The conduct of
the preliminary investigation, the original charge of Robbery, and the
subsequent finding of the violation of the ordinance did not alter the
period within which to file the Information. Respondents were correct in
arguing that the petitioner only had two months from the discovery and
commission of the offense before it prescribed within which to file the
Information with the Municipal Trial Court.
Unfortunately, when the Office of the Prosecutor filed the Informations
on October 5, 2003, the period had already prescribed. Thus, respondent
Judge Nestor Lidua, Sr. did not err when he ordered the dismissal of the
case against respondents. According to the Department of Justice —
National Prosecutors Service Manual for Prosecutors, an Information is
defined under Part I, Section 5 as:
SEC. 5.Information. — An information is the accusation in writing charging
a person with an offense, subscribed by the prosecutor, and filed with the
court. The information need not be placed under oath by the prosecutor
signing the same.
The prosecutor must, however, certify under oath that —
a) he has examined the complainant and his witnesses;
b) there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof;
c) the accused was informed of the complaint and of the evidence
submitted against him; and
d) the accused was given an opportunity to submit controverting
evidence.
As for the place of the filing of the Information, the Manual also provides
that:
SEC. 12.Place of the commission of offense. — The complaint or
information is sufficient if it states that the crime charged was committed
or some of the ingredients thereof occurred at some place within the
jurisdiction of the court, unless the particular place in which the crime was
committed is an essential element of the crime[,] e.g., in a prosecution for
violation of the provision of the Election Code which punishes the carrying
of a deadly weapon in a "polling place," or if it is necessary to identify the
offense charged[,] e.g., the domicile in the offense of "violation of
domicile."
Finally, as for the prescription period, the Manual provides that:
SEC. 20.How Period of Prescription Computed and Interrupted. — For an
offense penalized under the Revised Penal Code, the period of
prescription commences to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and
shall be interrupted:
a) by the filing of the complaint with the Office of the City/Provincial
Prosecutor; or wit[h] the Office of the Ombudsman; or
b) by the filing of the complaint or information with the court even if it is
merely for purposes of preliminary examination or investigation, or even
if the court where the complaint or information is filed cannot try the case
on its merits.
However, for an offense covered by the Rules on Summary Procedure,
the period of prescription is interrupted only by the filing of the
complaint or information in court.
18
xxx xxx xxx ||| (Jadewell Parking Systems Corp. v. Lidua, Sr., G.R. No. 169588,
[October 7, 2013], 719 PHIL 1-19)
For violation of a special law or ordinance, the period of prescription
shall commence to run from the day of the commission of the violation,
and if the same is not known at the time, from the discovery and the
institution of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted only by the filing of the complaint
or information in court and shall begin to run again if the proceedings
are dismissed for reasons not constituting double jeopardy. (Emphasis
supplied).

Presidential Decree No. 1275 32 reorganized the Department of Justice's

Prosecution Staff and established Regional State Prosecution Offices.
These Regional State Prosecution Offices were assigned centers for
particular regions where the Informations will be filed. Section 6 provides
that the area of responsibility of the Region 1 Center located in San
Fernando, La Union includes Abra, Benguet, Ilocos Norte, Ilocos Sur, La
Union, Mt. Province, Pangasinan, and the cities of Baguio, Dagupan,
Laoag, and San Carlos.

The Regional Prosecutor for Region 1 or his/her duly assigned prosecutor

was designated to file the Information within the two-month period
provided for in Act No. 3326, as amended. AECacT

The failure of the prosecutor to seasonably file the Information is

unfortunate as it resulted in the dismissal of the case against the private
respondents. It stands that the doctrine of Zaldivia is applicable to
ordinances and their prescription period. It also upholds the necessity of
filing the Information in court in order to toll the period. Zaldivia also has
this to say concerning the effects of its ruling:

The Court realizes that under the above interpretation, a crime may
prescribe even if the complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of the necessary
judicial proceedings until it is too late. However, that possibility should not
justify a misreading of the applicable rules beyond their obvious intent as
reasonably deduced from their plain language. The remedy is not a
distortion of the meaning of the rules but a rewording thereof to prevent
the problem here sought to be corrected. 33

WHEREFORE, the Petition is DENIED.

SO ORDERED.

Velasco, Jr., Peralta, Abad and Mendoza, JJ., concur.

19
THIRD DIVISION
[G.R. No. 199527. January 10, 2018.]
PEOPLE OF THE PHILIPPINES, thru Private Complainant BRIAN VICTOR
BRITCHFORD, petitioner, vs. SALVADOR ALAPAN, respondent.
DECISION
MARTIRES, J p:
This is a petition for review on certiorari assailing the Resolution, dated 22
November 2011, of the Court of Appeals (CA) in CA-G.R. SP No. 118333,
which dismissed the petition seeking the imposition of subsidiary
imprisonment for nonpayment of fine in eight (8) cases of violation
of Batas Pambansa Bilang 22 (B.P. Blg. 22). HTcADC
THE FACTS
In an Information, dated 26 May 2006, respondent Salvador
Alapan (respondent) and his wife Myrna Alapan (Myrna) were charged
with eight (8) counts of violation of B.P. Blg. 22. Upon arraignment on 1
September 2006, they pleaded not guilty to the charges.
In August 2005, the Spouses Alapan borrowed P400,000.00 from
petitioner Brian Victor Britchford (petitioner) with a promise that they
would pay the said amount within three (3) months. To secure the
indebtedness, respondent issued eight (8) postdated checks.
When the checks matured, petitioner deposited then at the Philippine
National Bank (PNB), Olongapo City branch. One week thereafter, PNB
informed petitioner that the checks were dishonored for the reason that
the account against which the checks were drawn was closed. Petitioner
immediately informed respondent of the dishonor of the checks.
On their part, the Spouses Alapan averred that their account was closed
only on the last week of October 2005 because they suffered business
reverses. They nonetheless stated that they were willing to settle their
monetary obligation.
The MTC Ruling
In a decision, 1 dated 4 February 2009, the Municipal Trial Court, San
Felipe, Zambales (MTC), convicted respondent of eight (8) counts of
violation of B.P. Blg. 22. It imposed a penalty of fine instead of
imprisonment considering that respondent's act of issuing the bounced
checks was not tainted with bad faith and that he was a first-time
offender. On the other hand, the MTC acquitted Myrna because she did
not participate in the issuance of the dishonored checks. The fallo reads:
WHEREFORE, the Court finds the evidence of the prosecution to have
established the guilt of Accused Salvador Alapan of the eight (8) counts of
Violation of B.P. Blg. 22and imposes upon the aforenamed accused to pay
a fine of P30,000.00 for each case or total of P240,000.00 and to indemnify
the offended party, Mr. Brian Victor Britchford the sum of FOUR
HUNDRED ELEVEN THOUSAND (P411,000.00) Philippine Currency,
representing the face value of the dishonored checks, with legal interest
per annum commencing from March 8, 2006, when demand was made,
until fully paid, and to pay attorney's fees of P15,000.00 and to pay the
costs. 2
After the MTC judgment became final and executory, a writ of execution
was issued. The writ, however, was returned unsatisfied. Petitioner thus
filed a Motion to Impose Subsidiary Penalty 3 for respondent's failure to
pay the fine imposed by the MTC.
In its Order, 4 dated 24 September 2010, the MTC denied the motion on
the ground that subsidiary imprisonment in case of insolvency was not
imposed in the judgment of conviction.
Aggrieved, petitioner filed an appeal before the Regional Trial Court,
Branch 69, Iba, Zambales (RTC).
The RTC Ruling
In a decision, 5 dated 25 January 2011, the RTC dismissed the appeal for
lack of jurisdiction. It held that respondent could not be made to undergo
subsidiary imprisonment because the judgment of conviction did not
provide for such penalty in case of non-payment of fine. The RTC further
opined that the MTC decision which already attained finality could no
longer be altered or modified. It disposed the case in this wise:
IN VIEW THEREOF, the appeal is DISMISSED for lack of jurisdiction. 6
Undeterred, petitioner filed a petition for review before the CA.
The CA Ruling
In a Resolution, dated 22 November 2011, the CA dismissed the petition.
It ruled that the petition was filed without the intervention of the Office
of the Solicitor General (OSG) which was contrary to Section 35, Chapter
12, Title III, Book IV of the Administrative Code. The dispositive portion
reads:
In view of the foregoing and finding the Manifestation (in lieu of
Comment) filed by the OSG to be well-founded, the petition is hereby
DISMISSED pursuant to Section 3, Rule 43 of the 1997 Rules of Court. 7
Hence, this petition.
ISSUES
I. WHETHER PETITIONER MAY ASSAIL THE PENALTY IMPOSED IN THE
JUDGMENT OF CONVICTION; aScITE
II. WHETHER RESPONDENT MAY UNDERGO SUBSIDIARY IMPRISONMENT
FOR FAILURE TO PAY THE FINE.
Petitioner argues that Section 35, Chapter 12, Title III, Book IV of
the Administrative Code is applicable only in cases wherein the
government or any of its branches or instrumentalities is directly involved;
that the said law does not cover matters wherein it is the interest of the
private complainant that is directly affected; and that Administrative
Circular No. 13-2001 expressly states that there is no legal obstacle to the
application of the Revised Penal Code (RPC) provisions on subsidiary
imprisonment should only a fine be imposed and the accused be unable
to pay the fine. 8
In his comment, respondent counters, citing Gonzales v. Chavez, 9 that it
is mandatory upon the OSG to represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents
in any litigation, proceeding, investigation or matter requiring the services
of a lawyer; that it is only the State, through its appellate counsel, the OSG,
which has the sole right and authority to institute criminal proceedings
before the Court of Appeals or the Supreme Court; 10 that the imposition
or the non-imposition of subsidiary penalty is a matter that involves the
interest of the State, thus, the private offended party is without legal
personality to bring an appeal on the criminal aspect of the case; and that
the imposition of subsidiary imprisonment must be clearly stated in the
judgment. 11
In his reply, petitioner avers that Administrative Circular No. 13-
2001 categorically implies that subsidiary imprisonment could be resorted
to even if the penalty provided by the trial court is limited only to fine; and
that the imposition of subsidiary imprisonment would emphasize the
gravity of the offense committed by respondent and would serve as a
deterrent to others not to emulate this malicious act. 12
OUR RULING
20
Petitioner lacks legal standing
to question the trial court's
order.
In the appeal of criminal cases before the Court of Appeals or the Supreme
Court, the authority to represent the People is vested solely in the
Solicitor General. This power is expressly provided in Section 35, Book IV,
Title III, Chapter 12 of the Revised Administrative Code. 13 Without
doubt, the OSG is the appellate counsel of the People of the Philippines in
all criminal cases. 14
Jurisprudence has already settled that the interest of the private
complainant is limited only to the civil liability arising from the crime.
Thus, in Bautista v. Cuneta-Pangilinan, 15 the Court ruled:
Thus, the Court has definitively ruled that in a criminal case in which the
offended party is the State, the interest of the private complainant or the
private offended party is limited to the civil liability arising therefrom. If a
criminal case is dismissed by the trial court or if there is an acquittal, an
appeal of the criminal aspect may be undertaken, whenever legally
feasible, only by the State through the solicitor general. As a rule, only the
Solicitor General may represent the People of the Philippines on appeal.
The private offended party or complainant may not undertake such
appeal. 16
In this case, respondent was convicted of eight (8) counts of violation
of B.P. Blg. 22 for which he was imposed the penalty of fine instead of
imprisonment pursuant toAdministrative Circulars No. 12-2000 and 13-
2001. Thus, the penalty of fine and the imposition of subsidiary
imprisonment in case of nonpayment thereof pertain to the criminal
aspect of the case. On the other hand, the indemnification for the face
value of the dishonored checks refers to the civil aspect of the case.
Consequently, petitioner could not appeal the imposition of fine as
penalty which was not even questioned by the People through the OSG.
"While a private prosecutor may be allowed to intervene in criminal
proceedings on appeal in the Court of Appeals or the Supreme Court, his
participation is subordinate to the interest of the People, hence, he
cannot be permitted to adopt a position contrary to that of the Solicitor
General. To do so would be tantamount to giving the private prosecutor
the direction and control of the criminal proceeding, contrary to the
provisions of law." 17 Hence, the CA properly dismissed the petition for
review.
Subsidiary imprisonment in
case of insolvency must be
expressly stated in the
judgment of conviction.
Another reason which militates against petitioner's position is the lack of
provision pertaining to subsidiary imprisonment in the judgment of
conviction. People v. Fajardo, 18 in relation to Republic Act No.
5465 which amended Article 39 of the RPC, discusses the rationale behind
the necessity for expressly imposing subsidiary imprisonment in the
judgment of conviction, viz.:
The first paragraph of article 39 of the Revised Penal Code reads as
follows:
ART. 39. Subsidiary penalty. — If the convict has no property with which
to meet the fine mentioned in paragraph 3 of the next preceding article,
he shall be subject to a subsidiary personal liability at the rate of one day
for each eight pesos, subject to the following rules: . . .
Article 78 of Chapter V of the same Code, in its pertinent part, which deals
with the execution and service of penalties, provides:
ART. 78. When and how a penalty is to be executed. — No penalty shall
executed except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by
law, nor with any other circumstances or incidents than those expressly
authorized thereby. HEITAD
It is a fundamental principle consecration in Section 3 of the Jones Law,
the Act of Congress of the United States of America approved on August
29, 1916, which was still in force when the order appealed from was
made, that no person may be deprived of liberty without due process of
law. This constitutional provision was in a sense incorporated in article
78 of the Revised Penal Code prescribing that no penalty shall be
executed except by virtue of a final judgment. As the fact show that there
is no judgment sentencing the accused to suffer subsidiary imprisonment
in case of insolvent to pay the fine imposed upon him, because the said
subsidiary imprisonment is not stated in the judgment finding him guilty,
it is clear that the court could not legally compel him to serve said
subsidiary imprisonment. A contrary holding would be a violation of the
laws aforementioned. That subsidiary imprisonment is a penalty, there
can be no doubt, for, according to article 39 of the Revised Penal Code, it
is imposed upon the accused and served by him in lieu of the fine which
he fails to pay on account of insolvency. There is not a single provision in
the Code from which it may be logically inferred that an accused may
automatically be made to serve subsidiary imprisonment in a case where
he has been sentenced merely to pay a fine and has been found to be
insolvent. Such would be contrary to the legal provisions above-cited and
to the doctrine laid down in United States vs. Miranda (2 Phil., 606, 610),
in which it was said: "That judgment of the lower court fails to impose
subsidiary imprisonment in case of insolvency for indemnification to the
owner of the banca, but only imposes subsidiary punishment as to the
costs. In this respect the judgment is erroneous and should be modified."
We, therefore, conclude that an accused who has been sentenced by
final judgment to pay a fine only and is found to be insolvent and could
not pay the fine for this reason, cannot be compelled to serve the
subsidiary imprisonment provided for in article 39 of the Revised Penal
Code. [emphasis supplied] 19
Indeed, Administrative Circular No. 13-2001 provides that "should only a
fine be imposed and the accused be unable to pay the fine, there is no
legal obstacle to the application of the Revised Penal Code provisions on
subsidiary imprisonment." However, the Circular does not sanction
indiscriminate imposition of subsidiary imprisonment for the same must
still comply with the law.
Here, the judgment of conviction did not provide subsidiary imprisonment
in case of failure to pay the penalty of fine. Thus, subsidiary imprisonment
may not be imposed without violating the RPC and the constitutional
provision on due process.
The final and executory decision
of the MTC can no
longer be modified.
Finally, the time-honored doctrine of immutability of judgment precludes
modification of a final and executory judgment:
A decision that has acquired finality becomes immutable and unalterable.
This quality of immutability precludes the modification of a final
judgment, even if the modification is meant to correct erroneous
conclusions of fact and law. And this postulate holds true whether the
modification is made by the court that rendered it or by the highest court
in the land. The orderly administration of justice requires that, at the risk
of occasional errors, the judgments/resolutions of a court must reach a
point of finality set by the law. The noble purpose is to write finis to
dispute once and for all. This is a fundamental principle in our justice
system, without which there would be no end to litigations. Utmost
respect and adherence to this principle must always be maintained by
those who exercise the power of adjudication. Any act, which violates
such principle, must immediately be struck down. Indeed, the principle of
21
conclusiveness of prior adjudications is not confined in its operation to the
judgments of what are ordinarily known as courts, but extends to all
bodies upon which judicial powers had been conferred.

The only exceptions to the rule on the immutability of final judgments are
(1) the correction of clerical errors, (2) the so-called nunc pro tunc entries
which cause no prejudice to any party, and (3) void judgments. 20

There is no doubt that the MTC decision has long attained finality and that
none of the aforementioned exceptions finds application in this case.
Hence, the MTC decision stands and any other question involving the said
decision must now be put to rest. ATICcS

WHEREFORE, the petition is DENIED. The 22 November 2011 Resolution

of the Court of Appeals in CA-G.R. SP No. 118333 is AFFIRMED.

SO ORDERED.

Velasco, Jr., Bersamin, Leonen and Gesmundo, JJ., concur.

||| (People v. Alapan, G.R. No. 199527, [January 10, 2018])

22
THIRD DIVISION
[G.R. No. 182677. August 3, 2010.]
JOSE ANTONIO C. LEVISTE, petitioner, vs. HON. ELMO M. ALAMEDA,
HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE
LATE RAFAEL DE LAS ALAS, respondents.
DECISION
CARPIO MORALES, J p:
Jose Antonio C. Leviste (petitioner) assails via the present petition for
review filed on May 30, 2008 the August 30, 2007 Decision 1 and the April
18, 2008 Resolution 2 of the Court of Appeals in CA-G.R. SP No. 97761 that
affirmed the trial court's Orders of January 24, 31, February 7, 8, all in
2007, and denied the motion for reconsideration, respectively. aHTEIA
Petitioner was, by Information 3 of January 16, 2007, charged
with homicide for the death of Rafael de las Alas on January 12, 2007
before the Regional Trial Court (RTC) of Makati City. Branch 150 to which
the case was raffled, presided by Judge Elmo Alameda, forthwith issued a
commitment order 4 against petitioner who was placed under police
custody while confined at the Makati Medical Center. 5
After petitioner posted a P40,000 cash bond which the trial court
approved, 6 he was released from detention, and his arraignment was set
on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of
the public prosecutor, an Urgent Omnibus Motion 7 praying, inter alia, for
the deferment of the proceedings to allow the public prosecutor to re-
examine the evidence on record or to conduct a reinvestigation to
determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 2007 8 deferring
petitioner's arraignment and allowing the prosecution to conduct a
reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and
(2) Order of January 31, 2007 9 denying reconsideration of the first order.
Petitioner assailed these orders via certiorari and prohibition before the
Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion
before the trial court to defer acting on the public prosecutor's
recommendation on the proper offense until after the appellate court
resolves his application for injunctive reliefs, or alternatively, to grant him
time to comment on the prosecutor's recommendation and thereafter set
a hearing for the judicial determination of probable cause. 10 Petitioner
also separately moved for the inhibition of Judge Alameda with prayer to
defer action on the admission of the Amended Information. 11 acIHDA
The trial court nonetheless issued the other assailed orders, viz.: (1) Order
of February 7, 2007 12 that admitted the Amended
Information 13 for murder and directed the issuance of a warrant of
arrest; and (2) Order of February 8, 2007 14 which set the arraignment on
February 13, 2007. Petitioner questioned these two orders via
supplemental petition before the appellate court.
The appellate court dismissed petitioner's petition, hence, his present
petition, arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE
REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL
INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT.
HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN FINDING
THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO
BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN
ADMITTING STATE PROSECUTOR VELASCO'S AMENDED INFORMATION,
ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE
COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCO'S FINDINGS IN HIS
RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE
SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR
MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST
ALLOWED PETITIONER'S MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE. 15 (emphasis in the original
omitted)
Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court
to enter a plea of "not guilty" for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent
Application for Admission to Bail Ex Abundanti Cautela 16 which the trial
court, after hearings thereon, granted by Order of May 21, 2007, 17 it
finding that the evidence of guilt for the crime of murder is not strong. It
accordingly allowed petitioner to post bail in the amount of P300,000 for
his provisional liberty. CHaDIT
The trial court, absent any writ of preliminary injunction from the
appellate court, went on to try petitioner under the Amended
Information. By Decision of January 14, 2009, the trial court found
petitioner guilty of homicide, sentencing him to suffer an indeterminate
penalty of six years and one day of prision mayor as minimum to 12 years
and one day of reclusion temporal as maximum. From the Decision,
petitioner filed an appeal to the appellate court, docketed as CA-G.R. CR
No. 32159, during the pendency of which he filed an urgent application
for admission to bail pending appeal. The appellate court denied
petitioner's application which this Court, in G.R. No. 189122, affirmed by
Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence,
wherein petitioner actively participated, had been concluded. 18
Waiver on the part of the accused must be distinguished from mootness
of the petition, for in the present case, petitioner did not, by his active
participation in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. — An application for or admission to bail shall
not bar the accused from challenging the validity of his arrest or the
legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The
court shall resolve the matter as early as practicable but not later than the
start of the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of
the admission of the Amended Information, and the legality of his arrest
under the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner
refused to enter his plea since the issues he raised were still pending
resolution by the appellate court, thus prompting the trial court to enter
a plea of "not guilty" for him. HcTIDC
23
The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary
investigation applies "only if he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto." 19 There
must be clear and convincing proof that petitioner had an actual intention
to relinquish his right to question the existence of probable cause. When
the only proof of intention rests on what a party does, his act should be
so manifestly consistent with, and indicative of, an intent to voluntarily
and unequivocally relinquish the particular right that no other explanation
of his conduct is possible. 20
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite
resolution of the objections he so timely invoked. Other than its allegation
of active participation, the OSG offered no clear and convincing proof that
petitioner's participation in the trial was unconditional with the intent to
voluntarily and unequivocally abandon his petition. In fact, on January
26, 2010, petitioner still moved for the early resolution of the present
petition. 21
Whatever delay arising from petitioner's availment of remedies against
the trial court's Orders cannot be imputed to petitioner to operate as a
valid waiver on his part. Neither can the non-issuance of a writ of
preliminary injunction be deemed as a voluntary relinquishment of
petitioner's principal prayer. The non-issuance of such injunctive relief
only means that the appellate court did not preliminarily find any
exception 22 to the long-standing doctrine that injunction will not lie to
enjoin a criminal prosecution. 23Consequently, the trial of the case took
its course.
The petition is now moot, however, in view of the trial court's rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. 24 HTSAEa
The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the
present petition. Assuming that there is ground 25 to annul the finding of
probable cause for murder, there is no practical use or value in abrogating
the concluded proceedings and retrying the case under the original
Information for homicide just to arrive, more likely or even definitely, at
the same conviction of homicide. Mootness would have also set in had
petitioner been convicted of murder, for proof beyond reasonable doubt,
which is much higher than probable cause, would have been established
in that instance.
Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to
formulate controlling principles to guide the bench, bar and public. 26 In
the present case, there is compelling reason to clarify the remedies
available before and after the filing of an information in cases subject of
inquest.
After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate
court in finding no grave abuse of discretion in the issuance of the four
trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has
no right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without
a warrant, petitioner contends that the remedy of preliminary
investigation belongs only to the accused.
The contention lacks merit.
Section 6, 27 Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation, the complaint or information
may be filed by a prosecutor without need of such investigation provided
an inquest has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the proper court
on the basis of the affidavit of the offended party or arresting officer or
person. IDAEHT
Before the complaint or information is filed, the person arrested may ask
for a preliminary investigation in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he
may apply for bail and the investigation must be terminated within fifteen
(15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)
A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least
four years, two months and one day without regard to fine. 28 As an
exception, the rules provide that there is no need for a preliminary
investigation in cases of a lawful arrest without a warrant 29involving such
type of offense, so long as an inquest, where available, has been
conducted. 30
Inquest is defined as an informal and summary investigation conducted
by a public prosecutor in criminal cases involving persons arrested and
detained without the benefit of a warrant of arrest issued by the court for
the purpose of determining whether said persons should remain under
custody and correspondingly be charged in court. 31
It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of
inquest, to grasp the respective remedies available to them before and
after the filing of a complaint or information in court. IacHAE
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the
private complainant may proceed in coordinating with the arresting
officer and the inquest officer during the latter's conduct of inquest.
Meanwhile, the arrested person has the option to avail of a 15-day
preliminary investigation, provided he duly signs a waiver of any objection
against delay in his delivery to the proper judicial authorities under Article
125 of the Revised Penal Code. For obvious reasons, this remedy is not
available to the private complainant since he cannot waive what he does
not have. The benefit of the provisions of Article 125, which requires the
filing of a complaint or information with the proper judicial authorities
within the applicable period, 32 belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt
filing of an information in court or the immediate release of the arrested
person. 33 Notably, the rules on inquest do not provide for a motion for
reconsideration. 34
Contrary to petitioner's position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available
in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by
"petition by a proper party under such rules as the Department of Justice
24
may prescribe." 35 The rule referred to is the 2000 National Prosecution
Service Rule on Appeal, 36 Section 1 of which provides that the Rule shall
"apply to appeals from resolutions . . . in cases subject of preliminary
investigation/reinvestigation." In cases subject of inquest, therefore, the
private party should first avail of a preliminary investigation or
reinvestigation, if any, before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a
preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet
provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing.
The Rules of Court and the New Rules on Inquest are silent, however, on
whether the private complainant could invoke, as respondent heirs of the
victim did in the present case, a similar right to ask for a
reinvestigation. AaSCTD
The Court holds that the private complainant can move for
reinvestigation, subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public
prosecutor. 37 The private complainant in a criminal case is merely a
witness and not a party to the case and cannot, by himself, ask for the
reinvestigation of the case after the information had been filed in court,
the proper party for that being the public prosecutor who has the control
of the prosecution of the case. 38 Thus, in cases where the private
complainant is allowed to intervene by counsel in the criminal
action, 39 and is granted the authority to prosecute, 40 the private
complainant, by counsel and with the conformity of the public prosecutor,
can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must "examine the Information vis-à-vis the resolution of the
investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and
substance." 41
. . . Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge
himself but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be manifest or
evident, nor is it required that such nuances as offenses includible in the
offense charged be taken into account. It necessarily follows, therefore,
that the prosecutor can and should institute remedial
measures[.] 42 (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department of the
government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to
execute our laws is the right to prosecute their violators. The right to
prosecute vests the prosecutor with a wide range of discretion — the
discretion of what and whom to charge, the exercise of which depends on
a smorgasbord of factors which are best appreciated by
prosecutors. 43 SCIacA
The prosecution's discretion is not boundless or infinite, however. 44 The
standing principle is that once an information is filed in court, any
remedial measure such as a reinvestigation must be addressed to the
sound discretion of the court. Interestingly, petitioner supports this
view. 45 Indeed, the Court ruled in one case that:
The rule is now well settled that once a complaint or information is filed
in court, any disposition of the case, whether as to its dismissal or the
conviction or the acquittal of the accused, rests in the sound discretion of
the court. Although the prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is already in court, he
cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not
a criminal case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem proper
thereafter should be addressed to the court for its consideration and
approval. The only qualification is that the action of the court must not
impair the substantial rights of the accused or the right of the People to
due process of law.
xxx xxx xxx
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or consent of the
court must be secured. If after such re-investigation the prosecution finds
a cogent basis to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may be taken but
shall likewise be addressed to the sound discretion of the
court. 46 (underscoring supplied)
While Abugotal v. Judge Tiro 47 held that to ferret out the truth, a trial is
to be preferred to a reinvestigation, the Court therein recognized that a
trial court may, where the interest of justice so requires, grant a motion
for reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecution's motion for reinvestigation,
the former is deemed to have deferred to the authority of the
prosecutorial arm of the Government. Having brought the case back to
the drawing board, the prosecution is thus equipped with discretion —
wide and far reaching — regarding the disposition thereof, 48 subject to
the trial court's approval of the resulting proposed course of
action. SEIaHT
Since a reinvestigation may entail a modification of the criminal
information as what happened in the present case, the Court's holding is
bolstered by the rule on amendment of an information under Section 14,
Rule 110 of the Rules of Court:
A complaint or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters his
plea. After the plea and during the trial, a formal amendment may only be
made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of
the offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The court shall state
its reasons in resolving the motion and copies of its order shall be
furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper
offense in accordance with section 11, Rule 119, provided the accused
would not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial
amendment of the complaint or information may be made without leave
of court. 49 After the entry of a plea, only a formal amendment may be
made but with leave of court and only if it does not prejudice the rights of
the accused. After arraignment, a substantial amendment is proscribed
except if the same is beneficial to the accused. 50
It must be clarified though that not all defects in an information are
curable by amendment prior to entry of plea. An information which is
void ab initio cannot be amended to obviate a ground for quashal. 51 An
25
amendment which operates to vest jurisdiction upon the trial court is
likewise impermissible. 52 CaDATc
Considering the general rule that an information may be amended even
in substance and even without leave of court at any time before entry of
plea, does it mean that the conduct of a reinvestigation at that stage is a
mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation — be it a
complete disposition or an intermediate modification 53 of the charge —
is eventually addressed to the sound discretion of the trial court, which
must make an independent evaluation or assessment of the merits of the
case. Since the trial court would ultimately make the determination on the
proposed course of action, it is for the prosecution to consider whether a
reinvestigation is necessary to adduce and review the evidence for
purposes of buttressing the appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases involving a
substantial amendment of the information. Due process of law demands
that no substantial amendment of an information may be admitted
without conducting another or a new preliminary investigation.
In Matalam v. The 2nd Division of the Sandiganbayan, 54 the Court ruled
that a substantial amendment in an information entitles an accused to
another preliminary investigation, unless the amended information
contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the
Information from homicide to murder is considered a substantial
amendment, which would make it not just a right but a duty of the
prosecution to ask for a preliminary investigation.
The Court answers in the affirmative. TSaEcH
A substantial amendment consists of the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All
other matters are merely of form. The following have been held to be
mere formal amendments: (1) new allegations which relate only to the
range of the penalty that the court might impose in the event of
conviction; (2) an amendment which does not charge another offense
different or distinct from that charged in the original one; (3) additional
allegations which do not alter the prosecution's theory of the case so as
to cause surprise to the accused and affect the form of defense he has or
will assume; (4) an amendment which does not adversely affect any
substantial right of the accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and not to
introduce new and material facts, and merely states with additional
precision something which is already contained in the original information
and which adds nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is
whether a defense under the information as it originally stood would be
available after the amendment is made, and whether any evidence
defendant might have would be equally applicable to the information in
the one form as in the other. An amendment to an information which does
not change the nature of the crime alleged therein does not affect the
essence of the offense or cause surprise or deprive the accused of an
opportunity to meet the new averment had each been held to be one of
form and not of substance. 55 (emphasis and underscoring supplied)
Matalam adds that the mere fact that the two charges are related does
not necessarily or automatically deprive the accused of his right to
another preliminary investigation. Notatu dignum is the fact that both the
original Information and the amended Information in Matalam were
similarly charging the accused with violation of Section 3 (e) of the Anti-
Graft and Corrupt Practices Act.
In one case, 56 it was squarely held that the amendment of the
Information from homicide to murder is "one of substance with very
serious consequences." 57 The amendment involved in the present case
consists of additional averments of the circumstances of treachery,
evident premeditation, and cruelty, which qualify the offense charged
from homicide to murder. It being a new and material element of the
offense, petitioner should be given the chance to adduce evidence on the
matter. Not being merely clarificatory, the amendment essentially varies
the prosecution's original theory of the case and certainly affects not just
the form but the weight of defense to be mustered by petitioner. IcaHTA
The Court distinguishes the factual milieus in Buhat v. CA 58 and Pacoy v.
Cajigal, 59 wherein the amendment of the caption of the Information
from homicide to murder was not considered substantial because there
was no real change in the recital of facts constituting the offense charged
as alleged in the body of the Information, as the allegations of qualifying
circumstances were already clearly embedded in the original
Information. Buhat pointed out that the original Information for homicide
already alleged the use of superior strength, while Pacoy states that the
averments in the amended Information for murder are exactly the same
as those already alleged in the original Information for homicide. None of
these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required,
the fact that what was conducted in the present case was a reinvestigation
does not invalidate the substantial amendment of the Information. There
is no substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the
same objective of determining whether there exists sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof and should be held for trial. 60 What
is essential is that petitioner was placed on guard to defend himself from
the charge of murder 61 after the claimed circumstances were made
known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice
of hearing, petitioner opted to merely observe the proceedings and
declined to actively participate, even with extreme caution, in the
reinvestigation. Mercado v. Court of Appeals states that the rules do not
even require, as a condition sine qua non to the validity of a preliminary
investigation, the presence of the respondent as long as efforts to reach
him were made and an opportunity to controvert the complainant's
evidence was accorded him. 62
In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before
the appellate court of the petition for certiorari challenging the first two
trial court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the
course of the principal case unless a temporary retraining order or a writ
of preliminary injunction has been issued. 63 The appellate court, by
Resolution of February 15, 2007, 64 denied petitioner's application for a
temporary restraining order and writ of preliminary injunction.
Supplementary efforts to seek injunctive reliefs proved futile. 65 The
appellate court thus did not err in finding no grave abuse of discretion on
the part of the trial court when it proceeded with the case and eventually
arraigned the accused on March 21, 2007, there being no injunction order
from the appellate court. Moreover, petitioner opted to forego appealing
to the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the
arraignment. 66 CIcTAE
Regarding petitioner's protestations of haste, suffice to state that the
pace in resolving incidents of the case is not per se an indication of bias.
In Santos-Concio v. Department of Justice, 67 the Court held:
26
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of
functions. For one's prompt dispatch may be another's undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to
each case.
The presumption of regularity includes the public officer's official
actuations in all phases of work. Consistent with such presumption, it was
incumbent upon petitioners to present contradictory evidence other than
a mere tallying of days or numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating Panel's initial task
cannot be relegated as shoddy or shady without discounting the
presumably regular performance of not just one but five state
prosecutors. 68
There is no ground for petitioner's protestations against the DOJ
Secretary's sudden designation of Senior State Prosecutor Emmanuel
Velasco as Acting City Prosecutor of Makati City for the present
case 69 and the latter's conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public
prosecutor who will conduct the reinvestigation or preliminary
investigation. 70 There is a hierarchy of officials in the prosecutory arm of
the executive branch headed by the Secretary of Justice 71 who is vested
with the prerogative to appoint a special prosecutor or designate an
acting prosecutor to handle a particular case, which broad power of
control has been recognized by jurisprudence. 72
As for the trial court's ignoring the DOJ Secretary's uncontested
statements to the media which aired his opinion that if the assailant
merely intended to maim and not to kill the victim, one bullet would have
sufficed — the DOJ Secretary reportedly uttered that "the filing of the case
of homicide against ano against Leviste lintek naman eh I told you to
watch over that case. . . there should be a report about the ballistics,
about the paraffin, etc., then that's not a complete investigation, that's
why you should use that as a ground" — no abuse of discretion, much less
a grave one, can be imputed to it. cdasia
The statements of the DOJ Secretary do not evince a "determination to
file the Information even in the absence of probable cause." 73 On the
contrary, the remarks merely underscored the importance of securing
basic investigative reports to support a finding of probable cause. The
original Resolution even recognized that probable cause for the crime of
murder cannot be determined based on the evidence obtained "[u]nless
and until a more thorough investigation is conducted and eyewitness/es
[is/]are presented in evidence[.] " 74
The trial court concluded that "the wound sustained by the victim at the
back of his head, the absence of paraffin test and ballistic examination,
and the handling of physical evidence," 75 as rationalized by the
prosecution in its motion, are sufficient circumstances that require further
inquiry.
That the evidence of guilt was not strong as subsequently assessed in the
bail hearings does not affect the prior determination of probable cause
because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly
higher than the standard of judicial probable cause which is sufficient to
initiate a criminal case. 76
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of
probable cause, considering the lack of substantial or material new
evidence adduced during the reinvestigation.
Petitioner's argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made
during preliminary investigation. It is a function that properly pertains to
the public prosecutor who is given a broad discretion to determine
whether probable cause exists and to charge those whom he believes to
have committed the crime as defined by law and thus should be held for
trial. Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in court. Whether
that function has been correctly discharged by the public prosecutor, i.e.,
whether he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and
may not be compelled to pass upon. 77
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in
order not to frustrate the ends of justice. If the judge finds no probable
cause, the judge cannot be forced to issue the arrest
warrant. 78 Paragraph (a), Section 5, 79 Rule 112 of the Rules of
Court outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause
is a mere superfluity, for with or without such motion, the judge is duty-
bound to personally evaluate the resolution of the public prosecutor and
the supporting evidence. In fact, the task of the presiding judge when the
Information is filed with the court is first andforemost to determine the
existence or non-existence of probable cause for the arrest of the
accused. 80 DaTEIc
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. But the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report and the supporting
documentssubmitted by the prosecutor regarding the existence of
probable cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutor's
report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable
cause. 81 (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable
cause for the issuance of a warrant of arrest of the accused before any
warrant may be issued. 82Petitioner thus cannot, as a matter of right,
insist on a hearing for judicial determination of probable cause. Certainly,
petitioner "cannot determine beforehand how cursory or exhaustive the
[judge's] examination of the records should be [since t]he extent of the
judge's examination depends on the exercise of his sound discretion as
the circumstances of the case require." 83 In one case, the Court
emphatically stated:
The periods provided in the Revised Rules of Criminal
Procedure are mandatory, and as such, the judge must determine the
presence or absence of probable cause within such periods. The
Sandiganbayan's determination of probable cause is made ex parte and
is summary in nature, not adversarial. The Judge should not be stymied
and distracted from his determination of probable cause by needless
motions for determination of probable cause filed by the
accused. 84 (emphasis and underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that
no circumstances exist that would qualify the crime from homicide to
murder.
27
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid
conduct of reinvestigation. It is not material that no new matter or
evidence was presented during the reinvestigation of the case. It should
be stressed that reinvestigation, as the word itself implies, is merely a
repeat investigation of the case. New matters or evidence are not
prerequisites for a reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already
submitted. 85

Moreover, under Rule 45 of the Rules of Court, only questions of law may
be raised in, and be subject of, a petition for review on certiorari since this
Court is not a trier of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or presence of
probable cause, as there exists no exceptional circumstances to warrant a
factual review. 86

In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to
resolving only errors of jurisdiction. It is not to stray at will and resolve
questions and issues beyond its competence, such as an error of
judgment. 87 The court's duty in the pertinent case is confined to
determining whether the executive and judicial determination of
probable cause was done without or in excess of jurisdiction or with grave
abuse of discretion. Although it is possible that error may be committed
in the discharge of lawful functions, this does not render the act amenable
to correction and annulment by the extraordinary remedy
of certiorari, absent any showing of grave abuse of discretion amounting
to excess of jurisdiction. 88 HEcaIC

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution

of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.

SO ORDERED.

Nachura, * Bersamin, Abad ** and Villarama, Jr., JJ., concur.

||| (Leviste v. Alameda, G.R. No. 182677, [August 3, 2010], 640 PHIL 620-
651)

28
SECOND DIVISION
[G.R. No. 60033. April 4, 1984.]
TEOFISTO GUINGONA, JR., ANTONIO I. MARTIN, and TERESITA
SANTOS, petitioners, vs. THE CITY FISCAL OF MANILA, HON. JOSE B.
FLAMINIANO, ASST. CITY FISCAL FELIZARDO N. LOTA and CLEMENT
DAVID, respondents.
Feliciano C. Tumale for petitioners.
Asuncion, Gomez & de Leon for private respondents.
The Solicitor General for respondents.
DECISION
MAKASIAR, J p:
This is a petition for prohibition and injunction with a prayer for the
immediate issuance of restraining order and/or writ of preliminary
injunction filed by petitioners on March 26, 1982.
On March 31, 1982, by virtue of a court resolution issued by this Court on
the same date, a temporary restraining order was duly issued ordering the
respondents, their officers, agents, representatives and/or person or
persons acting upon their (respondents') orders or in their place or stead
to refrain from proceeding with the preliminary investigation in Case No.
81-31938 of the Office of the City Fiscal of Manila (pp. 47-48, rec.). On
January 24, 1983, private respondent Clement David filed a motion to lift
restraining order which was denied in the resolution of this Court dated
May 18, 1983.
As can be gleaned from the above, the instant petition seeks to prohibit
public respondents from proceeding with the preliminary investigation of
I.S. No. 81-31938, in which petitioners were charged by private
respondent Clement David, with estafa and violation of Central Bank
Circular No. 364 and related regulations regarding foreign exchange
transactions principally, on the ground of lack of jurisdiction in that the
allegations of the charged, as well as the testimony of private
respondent's principal witness and the evidence through said witness,
showed that petitioners' obligation is civil in nature.
For purposes of brevity, We hereby adopt the antecedent facts narrated
by the Solicitor General in its Comment dated June 28, 1982, as follows:
"On December 23, 1981, private respondent David filed I.S. No. 81-31938
in the Office of the City Fiscal of Manila, which case was assigned to
respondent Lota for preliminary investigation (Petition, p. 8).
"In I.S. No. 81-31938, David charged petitioners (together with one Robert
Marshall and the following directors of the Nation Savings and Loan
Association, Inc., namely Homero Gonzales, Juan Merino, Flavio
Macasaet, Victor Gomez, Jr., Perfecto Mañalac, Jaime V. Paz, Paulino B.
Dionisio, and one John Doe) with estafa and violation of Central Bank
Circular No. 364 and related Central Bank regulations on foreign exchange
transactions, allegedly committed as follows (Petition, Annex 'A'):
"'From March 20, 1979 to March, 1981, David invested with the Nation
Savings and Loan Association, (hereinafter called NSLA) the sum of
P1,145,546.20 on time deposits, P13,531.94 on savings account deposits
(jointly with his sister, Denise Kuhne), US$10,000.00 on time deposit,
US$15,000.00 under a receipt and guarantee of payment and
US$50,000.00 under a receipt dated June 8, 1980 (all jointly with Denise
Kuhne), that David was induced into making the aforestated investments
by Robert Marshall, an Australian national who was allegedly a close
associate of petitioner Guingona Jr., then NSLA President, petitioner
Martin, then NSLA Executive Vice-President and petitioner Santos, then
NSLA General Manager; that on March 21, 1981 NSLA was placed under
receivership by the Central Bank, so that David filed claims therewith for
his investments and those of his sister; that on July 22, 1981 David
received a report from the Central Bank that only P305,821.92 of those
investments were entered in the records of NSLA; that, therefore, the
respondents in I.S. No. 81-31938 misappropriated the balance of the
investments, at the same time violating Central Bank Circular No. 364 and
related Central Bank regulations on foreign exchange transactions; that
after demands, petitioner Guingona Jr. paid only P200,000.00, thereby
reducing the amounts misappropriated to P959,078.14 and
US$75,000.00.
"Petitioners, Martin and Santos, filed a joint counter-affidavit (Petition,
Annex 'B') in which they stated the following:
"'That Martin became President of NSLA in March 1978 (after the
resignation of Guingona, Jr.) and served as such until October 30, 1980,
while Santos was General Manager up to November 1980; that because
NSLA was urgently in need of funds and at David's insistence, his
investments were treated as special accounts with interests above the
legal rate, and recorded in separate confidential documents only a portion
of which were to be reported because he did not want the Australian
government to tax his total earnings (nor) to know his total investments;
that all transactions with David were recorded except the sum of
US$15,000.00 which was a personal loan of Santos; that David's check for
US$50,000.00 was cleared through Guingona, Jr.'s dollar account because
NSLA did not have one, that a draft of US$30,000.00 was placed in the
name of one Paz Roces because of a pending transaction with her; that
the Philippine Deposit Insurance Corporation had already reimbursed
David within the legal limits; that majority of the stockholders of NSLA had
filed Special Proceedings No. 82-1695 in the Court of First Instance to
contest its (NSLA's) closure; that after NSLA was placed under
receivership, Martin executed a promissory note in David's favor and
caused the transfer to him of a nine and one half (9 1/2) carat diamond
ring with a net value of P510,000.00; and, that the liabilities of NSLA to
David were civil in nature.'
"Petitioner, Guingona, Jr., in his counter-affidavit (Petition, Annex 'C')
stated the following:
"'That he had no hand whatsoever in the transactions between David and
NSLA since he (Guingona Jr.) had resigned as NSLA president in March
1978, or prior to those transactions; that he assumed a portion of the
liabilities of NSLA to David because of the latter's insistence that he placed
his investments with NSLA because of his faith in Guingona, Jr.; that in a
Promissory Note dated June 17, 1981 (Petition, Annex "D") he (Guingona,
Jr.) bound himself to pay David the sums of P668.307.01 and
US$37,500.00 in stated installments; that he (Guingona, Jr.) secured
payment of those amounts with second mortgages over two (2) parcels of
land under a deed of Second Real Estate Mortgage (Petition, Annex" E")
in which it was provided that the mortgage over one (1) parcel shall be
cancelled upon payment of one half of the obligation to David; that he
(Guingona, Jr.) paid P200,000.00 and tendered another P300,000.00
which David refused to accept, hence, he (Guingona, Jr.) filed Civil Case
No. Q-33865 in the Court of First Instance of Rizal at Quezon City, to effect
the release of the mortgage over one (1) of the two parcels of land
conveyed to David under second mortgages.'
"At the inception of the preliminary investigation before respondent Lota,
petitioners moved to dismiss the charges against them for lack of
jurisdiction because David's claims allegedly comprised a purely civil
obligation which was itself novated. Fiscal Lota denied the motion to
dismiss (Petition, p. 8)
"But, after the presentation of David's principal witness, petitioners filed
the instant petition because: (a) the production of the Promissory Notes,
29
Banker's Acceptance, Certificates of Time Deposits and Savings Account
allegedly showed that the transactions between David and NSLA were
simple loans, i.e., civil obligations on the part of NSLA which were novated
when Guingona, Jr. and Martin assumed them; and (b) David's principal
witness allegedly testified that the duplicate originals of the aforesaid
instruments of indebtedness were all on file with NSLA, contrary to
David's claim that some of his investments were not recorded (Petition,
pp. 8-9).
"Petitioners alleged that they did not exhaust available administrative
remedies because to do so would be futile (Petition, p. 9)" [pp. 153-157,
rec.]
As correctly pointed out by the Solicitor General, the sole issue for
resolution is whether public respondents acted without jurisdiction when
they investigated the charges (estafa and violation of CB Circular No. 364
and related regulations regarding foreign exchange transactions) subject
matter of I.S. No. 81-31938.
There is merit in the contention of the petitioners that their liability is civil
in nature and therefore, public respondents have no jurisdiction over the
charge of estafa. prLL
A casual perusal of the December 23, 1981 affidavit-complaint filed in the
Office of the City Fiscal of Manila by private respondent David against
petitioners Teofisto Guingona, Jr., Antonio I. Martin and Teresita G.
Santos, together with one Robert Marshall and the other directors of the
Nation Savings and Loan Association, will show that from March 20, 1979
to March, 1981, private respondent David, together with his sister, Denise
Kuhne, invested with the Nation Savings and Loan Association the sum of
P1,145,546.20 on time deposits covered by Bankers Acceptances and
Certificates of Time Deposits and the sum of P13,531.94 on savings
account deposits covered by passbook nos. 6-632 and 29-742, or a total
of P1,159,078.14 (pp. 15-16, rec.). It appears further that private
respondent David, together with his sister, made investments in the
aforesaid bank in the amount of US$75,000.00 (p. 17, rec.).
Moreover, the records reveal that when the aforesaid bank was placed
under receivership on March 21, 1981, petitioners Guingona and Martin,
upon the request of private respondent David, assumed the obligation of
the bank to private respondent David by executing on June 17, 1981 a
joint promissory note in favor of private respondent acknowledging an
indebtedness of P1,336,614.02 and US$75,000.00 (p. 80, rec.). This
promissory note was based on the statement of account as of June 30,
1981 prepared by the private respondent (p. 81, rec.). The amount of
indebtedness assumed appears to be bigger than the original claim
because of the added interest and the inclusion of other deposits of
private respondent's sister in the amount of P116,613.20.
Thereafter, or on July 17, 1981, petitioners Guingona and Martin agreed
to divide the said indebtedness, and petitioner Guingona executed
another promissory note antedated to June 17, 1981 whereby he
personally acknowledged an indebtedness of P668,307.01 (1/2 of
P1,336,614.02) and US$37,500.00 (1/2 of US$75,000.00) in favor of
private respondent (p. 25, rec.). The aforesaid promissory notes were
executed as a result of deposits made by Clement David and Denise Kuhne
with the Nation Savings and Loan Association.
Furthermore, the various pleadings and documents filed by private
respondent David before this Court indisputably show that he has indeed
invested his money on time and savings deposits with the Nation Savings
and Loan Association.
It must be pointed out that when private respondent David invested his
money on time and savings deposits with the aforesaid bank, the contract
that was perfected was a contract of simple loan or mutuum and not a
contract of deposit. Thus, Article 1980 of the New Civil Code provides that:
"Article 1980. Fixed, savings, and current deposits of money in banks and
similar institutions shall be governed by the provisions concerning simple
loan."
In the case of Central Bank of the Philippines vs. Morfe (63 SCRA 114, 119
[1975], We said:
"It should be noted that fixed, savings, and current deposits of money in
banks and similar institutions are not true deposits. They are considered
simple loans and, as such, are not preferred credits (Art. 1980 Civil Code:
In re Liquidation of Mercantile Bank of China: Tan Tiong Tick vs. American
Apothecaries Co., 65 Phil. 414; Pacific Coast Biscuit Co. vs. Chinese Grocers
Association, 65 Phil. 375; Fletcher American National Bank vs. Ang Cheng
Lian, 65 Phil. 385; Pacific Commercial Co. vs. American Apothecaries Co.,
65 Phil. 429; Gopoco Grocery vs. Pacific Coast Biscuit Co., 65 Phil. 443)."
This Court also declared in the recent case of Serrano vs. Central Bank of
the Philippines (96 SCRA 96, 102 [1980]) that: prLL
"Bank deposits are in the nature of irregular deposits. They are really loans
because they earn interest. All kinds of bank deposits, whether fixed,
savings, or current are to be treated as loans and are to be covered by the
law on loans (Art. 1980, Civil Code; Gullas vs. Phil. National Bank, 62 Phil.
519). Current and savings deposits are loans to a bank because it can use
the same. The petitioner here in making time deposits that earn interests
with respondent Overseas Bank of Manila was in reality a creditor of the
respondent Bank and not a depositor. The respondent Bank was in turn a
debtor of petitioner. Failure of the respondent Bank to honor the time
deposit is failure to pay its obligation as a debtor and not a breach of trust
arising from a depository's failure to return the subject matter of the
deposit" (emphasis supplied).
Hence, the relationship between the private respondent and the Nation
Savings and Loan Association is that of creditor and debtor; consequently,
the ownership of the amount deposited was transmitted to the Bank upon
the perfection of the contract and it can make use of the amount
deposited for its banking operations, such as to pay interests on deposits
and to pay withdrawals. While the Bank has the obligation to return
the amount deposited, it has, however, no obligation to return or deliver
the same money that was deposited. And, the failure of the Bank to return
the amount deposited will not constitute estafa through misappropriation
punishable under Article 315, par. 1(b) of the Revised Penal Code, but it
will only give rise to civil liability over which the public respondents have
no jurisdiction.
WE have already laid down the rule that:
"In order that a person can be convicted under the above-quoted
provision, it must be proven that he has the obligation to deliver or return
the same money, goods or personal property that he received. Petitioners
had no such obligation to return the same money, i.e., the bills or coins,
which they received from private respondents. This is so because as
clearly stated in criminal complaints, the related civil complaints and the
supporting sworn statements, the sums of money that petitioners
received were loans.
"The nature of simple loan is defined in Articles 1933 and 1953 of the Civil
Code.
"'Art. 1933. — By the contract of loan, one of the parties delivers to
another, either something not consumable so that the latter may use the
same for a certain time and return it, in which case the contract is called
a commodatum; or money or other consumable thing, upon the condition
that the same amount of the same kind and quality shall be paid in which
case the contract is simply called a loan or mutuum.
"'Commodatum is essentially gratuitous.
"'Simple loan may be gratuitous or with a stipulation to pay interest.
30
"'In commodatum the bailor retains the ownership of the thing loaned,
while in simple loan, ownership passes to the borrower.
"'Art. 1953. — A person who receives a loan of money or any other
fungible thing acquires the ownership thereof, and is bound to pay to the
creditor an equal amount of the same kind and quality.'
"It can be readily noted from the above quoted provisions that in simple
loan (mutuum), as contrasted to commodatum, the borrower acquires
ownership of the money, goods or personal property borrowed. Being the
owner, the borrower can dispose of the thing borrowed (Article 248, Civil
Code) and his act will not be considered misappropriation thereof"
(Yam vs. Malik, 94 SCRA 30, 34 [1979]; emphasis supplied).
But even granting that the failure of the bank to pay the time and savings
deposits of private respondent David would constitute a violation of
paragraph 1(b) of Article 315 of the Revised Penal Code, nevertheless any
incipient criminal liability was deemed avoided, because when the
aforesaid bank was placed under receivership by the Central Bank,
petitioners Guingona and Martin assumed the obligation of the bank to
private respondent David, thereby resulting in the novation of the original
contractual obligation arising from deposit into a contract of loan and
converting the original trust relation between the bank and private
respondent David into an ordinary debtor-creditor relation between the
petitioners and private respondent. Consequently, the failure of the bank
or petitioners Guingona and Martin to pay the deposits of private
respondent would not constitute a breach of trust but would merely be a
failure to pay the obligation as a debtor.
Moreover, while it is true that novation does not extinguish criminal
liability, it may however, prevent the rise of criminal liability as long as it
occurs prior to the filing of the criminal information in court. Thus, in
Gonzales vs. Serrano ( 25 SCRA 64, 69 [1968]) We held that: LexLib
"As pointed out in People vs. Nery, novation prior to the filing of the
criminal information — as in the case at bar — may convert the relation
between the parties into an ordinary creditor-debtor relation, and place
the complainant in estoppel to insist on the original transaction or 'cast
doubt on the true nature' thereof."
Again, in the latest case of Ong vs. Court of Appeals (L-58476, 124 SCRA
578, 580-581 [1983]), this Court reiterated the ruling in People vs. Nery
( 10 SCRA 244 [1964]), declaring that:
"The novation theory may perhaps apply prior to the filing of the criminal
information in court by the state prosecutors because up to that time the
original trust relation may be converted by the parties into an ordinary
creditor-debtor situation, thereby placing the complainant in estoppel to
insist on the original trust. But after the justice authorities have taken
cognizance of the crime and instituted action in court, the offended party
may no longer divest the prosecution of its power to exact the criminal
liability, as distinguished from the civil. The crime being an offense against
the state, only the latter can renounce it (People vs. Gervacio, 54 Off. Gaz.
2898; People vs. Velasco, 42 Phil. 76; U.S. vs. Montañes, 8 Phil. 620).
"It may be observed in this regard that novation is not one of the means
recognized by the Penal Code whereby criminal liability can be
extinguished; hence, the role of novation may only be to either prevent
the rise of criminal liability or to cast doubt on the true nature of the
original basic transaction, whether or not it was such that its breach would
not give rise to penal responsibility, as when money loaned is made to
appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs.
People, 90 Phil. 581; U.S. vs. Villareal, 27 Phil. 481)."
In the case at bar, there is no dispute that petitioners Guingona and
Martin executed a promissory note on June 17, 1981 assuming the
obligation of the bank to private respondent David; while the criminal
complaint for estafa was filed on December 23, 1981 with the Office of
the City Fiscal. Hence, it is clear that novation occurred long before the
filing of the criminal complaint with the Office of the City Fiscal.
Consequently, as aforestated, any incipient criminal liability would be
avoided but there will still be a civil liability on the part of
petitioners Guingona and Martin to pay the assumed obligation.
Petitioners herein were likewise charged with violation of Section 3 of
Central Bank Circular No. 364 and other related regulations regarding
foreign exchange transactions by accepting foreign currency deposit in
the amount of US$75,000.00 without authority from the Central Bank.
They contend however, that the US dollars intended by respondent David
for deposit were all converted into Philippine currency before acceptance
and deposit into Nation Savings and Loan Association. LLphil
Petitioners' contention is worthy of belief for the following reasons:
1. It appears from the records that when respondent David was about to
make a deposit of bank draft issued in his name in the amount of
US$50,000.00 with the Nation Savings and Loan Association, the same had
to be cleared first and converted into Philippine currency. Accordingly, the
bank draft was endorsed by respondent David to petitioner Guingona,
who in turn deposited it to his dollar account with the Security Bank and
Trust Company. Petitioner Guingona merely accommodated the request
of the Nation Savings and Loan Association in order to clear the bank draft
through his dollar account because the bank did not have a dollar account.
Immediately after the bank draft was cleared,
petitioner Guingona authorized Nation Savings and Loan Association to
withdraw the same in order to be utilized by the bank for its operations.
2. It is safe to assume that the U.S. dollars were converted first into
Philippine pesos before they were accepted and deposited in Nation
Savings and Loan Association, because the bank is presumed to have
followed the ordinary course of the business which is to accept deposits
in Philippine currency only, and that the transaction was regular and fair,
in the absence of a clear and convincing evidence to the contrary (see
paragraphs p and q, Sec. 5, Rule 131, Rules of Court).
3. Respondent David has not denied the aforesaid contention of herein
petitioners despite the fact that it was raised in petitioners' reply filed on
May 7, 1982 to private respondent's comment and in the July 27, 1982
reply to public respondents' comment and reiterated in petitioners'
memorandum filed on October 30, 1982, thereby adding more support to
the conclusion that the US$75,000.00 were really converted into
Philippine currency before they were accepted and deposited into Nation
Savings and Loan Association. Considering that this might adversely affect
his case, respondent David should have promptly denied petitioners'
allegation.
In conclusion, considering that the liability of the petitioners is purely civil
in nature and that there is no clear showing that they engaged in foreign
exchange transactions, We hold that the public respondents acted
without jurisdiction when they investigated the charges against the
petitioners. Consequently, public respondents should be restrained from
further proceeding with the criminal case for to allow the case to
continue, even if the petitioners could have appealed to the Ministry of
Justice, would work great injustice to petitioners and would render
meaningless the proper administration of justice.
While as a rule, the prosecution in a criminal offense cannot be the subject
of prohibition and injunction, this court has recognized the resort to the
extraordinary writs of prohibition and injunction in extreme cases, thus:
"On the issue of whether a writ of injunction can restrain the proceedings
in Criminal Case No. 3140, the general rule is that 'ordinarily, criminal
prosecution may not be blocked by court prohibition or injunction.'
Exceptions, however, are allowed in the following instances:
31
"'1. for the orderly administration of justice;

"'2. to prevent the use of the strong arm of the law in an oppressive and
vindictive manner;

"'3. to avoid multiplicity of actions;

"'4. to afford adequate protection to constitutional rights;

"'5. in proper cases, because the statute relied upon is unconstitutional or

was held invalid'" (Primicias vs. Municipality of Urdaneta, Pangasinan, 93
SCRA 462, 469-470 [1979]; citing Ramos vs. Torres, 25 SCRA 557 [1968];
and Hernandez vs. Albano, 19 SCRA 95, 96 [1967]).

Likewise, in Lopez vs. The City Judge, et al. (18 SCRA 616, 621-622 [1966]),
We held that: cdll

"The writs of certiorari and prohibition, as extraordinary legal remedies,

are in the ultimate analysis, intended to annul void proceedings; to
prevent the unlawful and oppressive exercise of legal authority and to
provide for a fair and orderly administration of justice. Thus, in Yu Kong
Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition for
certiorari and prohibition although the accused in the case could have
appealed in due time from the order complained of, our action in the
premises being based on the public welfare and the advancement of
public policy, In Dimayuga vs. Fajardo, 43 Phil. 304, We also admitted a
petition to restrain the prosecution of certain chiropractors although, if
convicted, they could have appealed. We gave due course to their petition
for the orderly administration of justice and to avoid possible oppression
by the strong arm of the law. And in Arevalo vs. Nepomuceno, 63 Phil.
627, the petition for certiorari challenging the trial court's action
admitting an amended information was sustained despite the availability
of appeal at the proper time."

WHEREFORE, THE PETITION IS HEREBY GRANTED; THE TEMPORARY

RESTRAINING ORDER PREVIOUSLY ISSUED IS MADE PERMANENT. COSTS
AGAINST THE PRIVATE RESPONDENT.

SO ORDERED//

32
THIRD DIVISION
[G.R. No. 213225. April 4, 2018.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENANTE
COMPRADO y BRONOLA, accused-appellant.
DECISION
MARTIRES, J p:
This is an appeal from the Decision 1 dated 19 May 2014, of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 01156 which affirmed the
Decision 2 dated 18 April 2013, of the Regional Trial Court, Branch 25,
Misamis Oriental (RTC), in Criminal Case No. 2011-671 finding Renante
Comprado y Bronola (accused-appellant) guilty of illegal possession of
marijuana. caITAC
THE FACTS
On 19 July 2011, accused-appellant was charged with violation of Section
11, Article 2 of Republic Act (R.A.) No. 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002. The Information reads:
That on July 15, 2011, at more or less eleven o'clock in the evening, along
the national highway, Puerto, Cagayan de Oro City, Philippines and within
the jurisdiction of the Honorable Court, the above-named accused,
without being authorized by law to possess or use any dangerous drugs,
did then and there, wilfully, unlawfully and criminally have in his
possession, control and custody 3,200 grams of dried fruiting tops of
suspected marijuana, which substance, after qualitative examination
conducted by the Regional Crime Laboratory, Office No. 10, Cagayan de
Oro City, tested positive for marijuana, a dangerous drug, with the said
accused, knowing the substance to be a dangerous drug. 3
Upon his arraignment on 8 August 2011, accused-appellant pleaded not
guilty to the crime charged. Thereafter, trial on the merits ensued.
Version of the Prosecution
On 15 July 2011, at 6:30 in the evening, a confidential informant (CI) sent
a text message to Police Inspector Dominador Orate, Jr. (P/Insp. Orate),
then Deputy Station Commander of Police Station 6, Puerto, Cagayan de
Oro City, that an alleged courier of marijuana together with a female
companion, was sighted at Cabanglasan, Bukidnon. The alleged courier
had in his possession a backpack containing marijuana and would be
traveling from Bukidnon to Cagayan de Oro City. At 9:30 in the evening,
the CI called P/Insp. Orate to inform him that the alleged drug courier had
boarded a bus with body number 2646 and plate number KVP 988 bound
for Cagayan de Oro City. The CI added that the man would be carrying a
backpack in black and violet colors with the marking "Lowe Alpine." Thus,
at about 9:45 in the evening, the police officers stationed at Police Station
6 put up a checkpoint in front of the station. 4
At 11:00 o'clock in the evening, the policemen stopped the bus bearing
the said body and plate numbers. P/Insp. Orate, Police Officer 3 Teodoro
de Oro (PO3 De Oro), Senior Police Officer 1 Benjamin Jay Reycitez (SPO1
Reycitez), and PO1 Rexie Tenio (PO1 Tenio) boarded the bus and saw a
man matching the description given to them by the CI. The man was
seated at the back of the bus with a backpack placed on his lap. After
P/Insp. Orate asked the man to open the bag, the police officers saw a
transparent cellophane containing dried marijuana leaves. 5
SPO1 Reycitez took photos of accused-appellant and the cellophane bag
containing the dried marijuana leaves. 6 PO3 De Oro, in the presence of
accused-appellant, marked the bag "RCB-2" and the contents of the bag
"RCB-1." 7 Thereafter, PO1 Tenio and PO3 De Oro brought accused-
appellant and the seized bag to the PNP Crime Laboratory for
examination. 8 On 16 July 2011, at around 1:40 in the morning, Police
Senior Inspector Charity Caceres (PSI Caceres) of the PNP Crime
Laboratory Office 10, Cagayan de Oro City, received the requests for
examination and the specimen. PSI Caceres, after conducting qualitative
examination of the specimen, issued Chemistry Report No. D-253-
2011 9 stating that the dried leaves seized from accused-appellant were
marijuana and which weighed 3,200 grams.
Version of the Defense
Accused-appellant denied ownership of the bag and the marijuana. He
maintains that on 15 July 2011, at around 6:30 in the evening, he and his
girlfriend went to the house of a certain Freddie Nacorda in Aglayan,
Bukidnon, to collect the latter's debt. When they were about to leave,
Nacorda requested him to carry a bag to Cagayan de Oro City.
When they reached Malaybalay City, Bukidnon, their vehicle was stopped
by three (3) police officers. All of the passengers were ordered to alight
from the vehicle for baggage inspection. The bag was opened and they
saw a transparent cellophane bag containing marijuana leaves. At around
9:00 o'clock in the evening, accused-appellant, his girlfriend, and the
police officers who arrested them boarded a bus bound for Cagayan de
Oro City.
When the bus approached Puerto, Cagayan de Oro City, the police officers
told the bus driver to stop at the checkpoint. The arresting officers took
photos of accused-appellant and his girlfriend inside the bus. They were
then brought to the police station where they were subjected to custodial
investigation without the assistance of counsel. 10
The RTC Ruling
In its decision, the RTC found accused-appellant guilty of illegal possession
of marijuana. It held that accused-appellant's uncorroborated claim that
he was merely requested to bring the bag to Cagayan de Oro City, did not
prove his innocence; mere possession of the illegal substance already
consummated the crime and good faith was not even a defense. The RTC
did not lend credence to accused-appellant's claim that he was arrested
in Malaybalay City, Bukidnon, because it was unbelievable that the police
officers would go out of their jurisdiction in Puerto, Cagayan de Oro City,
just to apprehend accused-appellant in Bukidnon. The fallo reads:
WHEREFORE, premises considered, this Court finds the accused RENANTE
COMPRADO y BRONOLA GUILTY BEYOND REASONABLE DOUBT of the
crime defined and penalized under Section 11, [7], Article II of R.A. No.
9165, as charged in the Information, and hereby sentences him to suffer
the penalty of LIFE IMPRISONMENT, and to pay the Fine of Five Hundred
Thousand Pesos [P500,000.00], without subsidiary penalty in case of
non-payment of fine.
Let the penalty imposed on the accused be a lesson and an example to all
who have criminal propensity, inclination and proclivity to commit the
same forbidden acts, that crime does not pay, and that the pecuniary gain
and benefit which one can derive from possessing drugs, or other illegal
substance, or from committing any other acts penalized under Republic
Act 9165, cannot compensate for the penalty which one will suffer if ever
he is prosecuted and penalized to the full extent of the law. 11 ICHDca
Aggrieved, accused-appellant appealed before the CA.
The CA Ruling
In its decision, the CA affirmed the conviction of accused-appellant. It
opined that accused-appellant submitted to the jurisdiction of the court
because he raised no objection as to the irregularity of his arrest before
his arraignment. The CA reasoned that the seized items are admissible in
evidence because the search and seizure of the illegal narcotics were
made pursuant to a search of a moving vehicle. It added that while it was
admitted by the arresting police officers that no representatives from the
media and other personalities required by law were present during the
33
operation and during the taking of the inventory, noncompliance with
Section 21, Article II of R.A. No. 9165 was not fatal and would not render
inadmissible accused-appellant's arrest or the items seized from him
because the prosecution was able to show that the integrity and
evidentiary value of the seized items had been preserved. The CA
disposed the case in this wise:
WHEREFORE, the appeal is DISMISSED. The Judgment dated 18 April 2013
of the Regional Trial Court of Misamis Oriental, 10th Judicial Region,
Branch 25 in Criminal Case No. 2011-671 is hereby affirmed in toto. 12
Hence, this appeal.
ISSUES
I. Whether accused-appellant's arrest was valid;
II. Whether the seized items are admissible in evidence; and
III. Whether accused-appellant is guilty of the crime charged.
OUR RULING
The Court finds for accused-appellant.
I.
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. 13
The Bill of Rights requires that a search and seizure must be carried out
with a judicial warrant; otherwise, any evidence obtained from such
warrantless search is inadmissible for any purpose in any
proceeding. 14 This proscription, however, admits of exceptions, namely:
1) Warrantless search incidental to a lawful arrest; 2) Search of evidence
in plain view; 3) Search of a moving vehicle; 4) Consented warrantless
search; 5) Customs search; 6) Stop and Frisk; and 7) Exigent and
emergency circumstances. 15
II.
A stop-and-frisk search is often confused with a warrantless search
incidental to a lawful arrest. However, the distinctions between the two
have already been settled by the Court in Malacat v. CA: 16
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance, the
law requires that there first be a lawful arrest before a search can be
made — the process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the
area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence.
xxx xxx xxx
We now proceed to the justification for and allowable scope of a "stop-
and-frisk" as a "limited protective search of outer clothing for weapons,"
as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled [to] the protection of himself and
others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might
be used to assault him. Such a search is a reasonable search under the
Fourth Amendment.
Other notable points of Terry are that while probable cause is not
required to conduct a "stop and frisk" it nevertheless holds that mere
suspicion or a hunch will not validate a "stop and frisk." A genuine reason
must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons
concealed about him. Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and
self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police
officer. 17 (emphases supplied and citations omitted) TCAScE
III.
A valid stop-and-frisk was illustrated in the cases of Posadas v.
CA (Posadas), 18 Manalili v. CA (Manalili), 19 and People v.
Solayao (Solayao). 20
In Posadas, two policemen were conducting a surveillance within the
premises of the Rizal Memorial Colleges when they spotted the accused
carrying a buri bag and acting suspiciously. They approached the accused
and identified themselves as police officers. The accused attempted to
flee but his attempt to get away was thwarted by the policemen who then
checked the buri bag wherein they found guns, ammunition, and a
grenade. 21
In Manalili, police officers were patrolling the Caloocan City cemetery
when they chanced upon a man who had reddish eyes and was walking in
a swaying manner. When this person tried to avoid the policemen, the
latter approached him and introduced themselves as police officers. The
policemen then asked what he was holding in his hands, but he tried to
resist. 22
In Solayao, police operatives were carrying out an intelligence patrol to
verify reports on the presence of armed persons roaming around the
barangays of Caibiran, Biliran. Later on, they met the group of accused-
appellant. The police officers became suspicious when they observed that
the men were drunk and that accused-appellant himself was wearing a
camouflage uniform or a jungle suit. Upon seeing the government agents,
accused-appellant's companions fled. Thus, the police officers found
justifiable reason to stop and frisk the accused. 23
IV.
On the other hand, the Court found no sufficient justification in the stop
and frisk committed by the police in People v. Cogaed (Cogaed). 24 In that
case, the police officers received a message from an informant that one
Marvin Buya would be transporting marijuana from Barangay Lun-Oy, San
Gabriel, La Union, to the Poblacion of San Gabriel, La Union. A checkpoint
was set up and when a passenger jeepney from Barangay Lun-Oy arrived
34
at the checkpoint, the jeepney driver disembarked and signaled to the
police officers that the two male passengers were carrying marijuana.
SPO1 Taracatac approached the two male passengers who were later
identified as Victor Cogaed and Santiago Dayao. SPO1 Taracatac asked
Cogaed and Dayao what their bags contained. Cogaed and Dayao told
SPO1 Taracatac that they did not know since they were transporting the
bags as a favor for their barrio mate named Marvin. After this exchange,
Cogaed opened the blue bag, revealing three bricks of what looked like
marijuana. The Court, in that case, invalidated the search and seizure
ruling that there were no suspicious circumstances that preceded the
arrest. Also, in Cogaed, there was a discussion of various jurisprudence
wherein the Court adjudged that there was no valid stop-and-frisk:
The circumstances of this case are analogous to People v. Aruta. In that
case, an informant told the police that a certain "Aling Rosa" would be
bringing in drugs from Baguio City by bus. At the bus terminal, the police
officers prepared themselves. The informant pointed at a woman crossing
the street and identified her as "Aling Rosa." The police apprehended
"Aling Rosa," and they alleged that she allowed them to look inside her
bag. The bag contained marijuana leaves.
In Aruta, this court found that the search and seizure conducted was
illegal. There were no suspicious circumstances that preceded Aruta's
arrest and the subsequent search and seizure. It was only the informant
that prompted the police to apprehend her. The evidence obtained was
not admissible because of the illegal search. Consequently, Aruta was
acquitted.
Aruta is almost identical to this case, except that it was the jeepney driver,
not the police's informant, who informed the police that Cogaed was
"suspicious."
The facts in Aruta are also similar to the facts in People v. Aminnudin.
Here, the National Bureau of Investigation (NBI) acted upon a tip, naming
Aminnudin as somebody possessing drugs. The NBI waited for the vessel
to arrive and accosted Aminnudin while he was disembarking from a boat.
Like in the case at bar, the NBI inspected Aminnudin's bag and found
bundles of what turned out to be marijuana leaves. The court declared
that the search and seizure was illegal. Aminnudin was acquitted.
xxx xxx xxx
People v. Chua also presents almost the same circumstances. In this case,
the police had been receiving information that the accused was
distributing drugs in "different karaoke bars in Angeles City." One night,
the police received information that this drug dealer would be dealing
drugs at the Thunder Inn Hotel so they conducted a stakeout. A car
"arrived and parked" at the hotel. The informant told the police that the
man parked at the hotel was dealing drugs. The man alighted from his car.
He was carrying a juice box. The police immediately apprehended him and
discovered live ammunition and drugs in his person and in the juice box
he was holding.
Like in Aruta, this court did not find anything unusual or suspicious about
Chua's situation when the police apprehended him and ruled that "[t]here
was no valid 'stop-and-frisk.'" 25 (citations omitted)
The Court finds that the totality of the circumstances in this case is not
sufficient to incite a genuine reason that would justify a stop-and-frisk
search on accused-appellant. An examination of the records reveals that
no overt physical act could be properly attributed to accused-appellant as
to rouse suspicion in the minds of the arresting officers that he had just
committed, was committing, or was about to commit a crime. P/Insp.
Orate testified as follows:
[Prosecutor Vicente]:
Q: On that date Mr. Witness, at about 6:30 in the evening, what
happened, if any?
A: At about 6:30 in the evening, I received an information from our
Confidential Informant reporting that an alleged courier of marijuana
were sighted in their place, Sir.
xxx xxx xxx
[Court]:
Q: Aside from the sighting of this alleged courier of marijuana, what else
was relayed to you if there were anything else?
A: Our Confidential Informant told me that two persons, a male and a
female were having in their possession a black pack containing marijuana,
Sir. cTDaEH
xxx xxx xxx
[Prosecutor Vicente:]
Q: And then, after you received the information through your cellphone,
what happened next, Mr. Witness?
A: So, I prepared a team to conduct an entrapment operation in order to
intercept these two persons, Sir.
Q: You said that the Informant informed you that the subject was still in
Cabanglasan?
A: Yes, Sir.
Q: How did you entrap the subject when he was still in Cabanglasan?
A: I am planning to conduct a check point because according to my
Confidential Informant the subject person is from Gingoog City, Sir.
Q: According to the information, how will he go here?
A: He will be travelling by bus, Sir.
Q: What bus?
A: Bachelor, Sir.
Q: And then, what happened next Mr. Witness?
A: At about 9:30 in the evening my Confidential Informant again called and
informed me that the subject person is now boarding a bus going to
Cagayan de Oro City, Sir.
Q: What did he say about the bus, if he said anything, Mr. Witness?
A: My agent was able to identify the body number of the bus, Bus No.
2646.
Q: Bearing Plate No.?
A: Bearing Plate No. KVP 988, Sir.
Q: What was he bringing at that time, according to the information?
A: According to my agent, these two persons were bringing along with
them a back pack color black violet with markings LOWE ALPINE.
Q: Then, what happened next, Mr. Witness?
A: We set up a check point in front of our police station and we waited for
the bus to come over, Sir.
xxx xxx xxx
Q: About 11 o'clock in the evening, what happened, Mr. Witness?
35
A: When we sighted the bus we flagged down the bus.
Q: After you flagged down the bus, what happened next?
A: We went on board the said bus, Sir.
xxx xxx xxx
Q: What happened next?
A: We went to the back of the bus and I saw a man carrying a back pack,
a black violet which was described by the Confidential Informant, the back
pack which was placed on his lap.
xxx xxx xxx
Q: After you saw them, what happened next?
A: We were able to identify the back pack and the description of the
courier, so, we asked him to please open the back pack.
xxx xxx xxx
Q: What happened next?
A: When he opened the back pack, we found marijuana leaves, the back
pack containing cellophane which the cellophane containing marijuana
leaves. 26
In his dissent from Esquillo v. People, 27 Justice Lucas P. Bersamin
emphasizes that there should be "presence of more than one seemingly
innocent activity from which, taken together, warranted a reasonable
inference of criminal activity." This principle was subsequently recognized
in the recent cases of Cogaed 28 and Sanchez v. People. 29 In the case at
bar, accused-appellant was just a passenger carrying his bag. There is
nothing suspicious much less criminal in said act. Moreover, such
circumstance, by itself, could not have led the arresting officers to believe
that accused-appellant was in possession of marijuana.
V.
As regards search incidental to a lawful arrest, it is worth emphasizing that
a lawful arrest must precede the search of a person and his belongings;
the process cannot be reversed. 30 Thus, it becomes imperative to
determine whether accused-appellant's warrantless arrest was valid.
Section 5, Rule 113 of the Rules of Criminal Procedure enumerates the
instances wherein a peace officer or a private person may lawfully arrest
a person even without a warrant:
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
(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.
Paragraph (a) of Section 5 is commonly known as an in flagrante
delicto arrest. For a warrantless arrest of an accused caught in flagrante
delicto to be valid, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has just committed,
is actually committing, or is attempting to commit a crime; and (2) such
overt act is done in the presence or within the view of the arresting
officer. 31 On the other hand, the elements of an arrest effected in hot
pursuit under paragraph (b) of Section 5 (arrest effected in hot pursuit)
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. 32 cSaATC
Here, without the tip provided by the confidential informant, accused-
appellant could not be said to have executed any overt act in the presence
or within the view of the arresting officers which would indicate that he
was committing the crime of illegal possession of marijuana. Neither did
the arresting officers have personal knowledge of facts indicating that
accused-appellant had just committed an offense. Again, without the
tipped information, accused-appellant would just have been any other
bus passenger who was minding his own business and eager to reach his
destination. It must be remembered that warrantless arrests are mere
exceptions to the constitutional right of a person against unreasonable
searches and seizures, thus, they must be strictly construed against the
government and its agents. While the campaign against proliferation of
illegal drugs is indeed a noble objective, the same must be conducted in a
manner which does not trample upon well-established constitutional
rights. Truly, the end does not justify the means.
VI.
The appellate court, in convicting accused-appellant, reasoned that the
search and seizure is valid because it could be considered as search of a
moving vehicle:
Warrantless search and seizure of moving vehicles are allowed in
recognition of the impracticability of securing a warrant under said
circumstances as the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant may be sought. Peace officers in such
cases, however, are limited to routine checks where the examination of
the vehicle is limited to visual inspection. When a vehicle is stopped and
subjected to an extensive search, such would be constitutionally
permissible only if the officers made it upon probable cause, i.e., upon a
belief, reasonably arising out of circumstances known to the seizing
officer, that an automobile or other vehicle contains [an] item, article or
object which by law is subject to seizure and destruction. 33
The search in this case, however, could not be classified as a search of a
moving vehicle. In this particular type of search, the vehicle is the target
and not a specific person. Further, in search of a moving vehicle, the
vehicle was intentionally used as a means to transport illegal items. It is
worthy to note that the information relayed to the police officers was that
a passenger of that particular bus was carrying marijuana such that when
the police officers boarded the bus, they searched the bag of the person
matching the description given by their informant and not the cargo or
contents of the said bus. Moreover, in this case, it just so happened that
the alleged drug courier was a bus passenger. To extend to such breadth
the scope of searches on moving vehicles would open the floodgates to
unbridled warrantless searches which can be conducted by the mere
expedient of waiting for the target person to ride a motor vehicle, setting
up a checkpoint along the route of that vehicle, and then stopping such
vehicle when it arrives at the checkpoint in order to search the target
person.
VII.
Any evidence obtained in violation of the right against unreasonable
searches and seizures shall be inadmissible for any purpose in any
proceeding. 34 This exclusionary rule instructs that evidence obtained
and confiscated on the occasion of such unreasonable searches and
seizures are deemed tainted and should be excluded for being the
36
proverbial fruit of a poisonous tree. In other words, evidence obtained
from unreasonable searches and seizures shall be inadmissible in
evidence for any purpose in any proceeding. 35

Without the confiscated marijuana, no evidence is left to convict accused-

appellant. Thus, an acquittal is warranted, despite accused-appellant's
failure to object to the regularity of his arrest before arraignment. The
legality of an arrest affects only the jurisdiction of the court over the
person of the accused. A waiver of an illegal, warrantless arrest does not
carry with it a waiver of the inadmissibility of evidence seized during an
illegal warrantless arrest. 36

WHEREFORE, the appeal is GRANTED. The 19 May 2014 Decision of the

Court of Appeals in CA-G.R. CR-HC No. 01156 is REVERSED and SET ASIDE.
Accused-appellant Renante Comprado y Bronola is ACQUITTED and
ordered RELEASED from detention unless he is detained for any other
lawful cause. The Director of the Bureau of Corrections is DIRECTED to
IMPLEMENT this Decision and to report to this Court the action taken
hereon within five (5) days from receipt.

SO ORDERED.

Velasco, Jr., Bersamin, Leonen and Gesmundo, JJ., concur.

||| (People v. Comprado y Bronola, G.R. No. 213225, [April 4, 2018])

37

EN BANC
[G.R. No. 197930. April 17, 2018.]
EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G.
SEE, petitioners, vs. HON. LEILA M. DE LIMA, in her capacity as Secretary
of Justice, and RICARDO V. PARAS III, in his capacity as Chief State
Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU OF
IMMIGRATION, respondents.
[G.R. No. 199034. April 17, 2018.]
MA. GLORIA MACAPAGAL-ARROYO, petitioner, vs. HON. LEILA
M. DE LIMA, as Secretary of the Department of Justice and RICARDO A.
DAVID, JR., as Commissioner of the Bureau of Immigration, respondents.
[G.R. No. 199046. April 17, 2018.]
JOSE MIGUEL T. ARROYO, petitioner, vs. HON. LEILA M. DE LIMA, as
Secretary of the Department of Justice and RICARDO V. PARAS III, as
Chief State Counsel, Department of Justice and RICARDO A. DAVID, JR.,
in his capacity as Commissioner, Bureau of Immigration, respondents.
DECISION
REYES, JR., J p:
These consolidated Petitions for Certiorari and Prohibition with Prayer for
the Issuance of Temporary Restraining Orders (TRO) and/or Writs of
Preliminary Injunction under Rule 65 of the Rules of Court assail the
constitutionality of Department of Justice (DOJ) Circular No. 41, series of
2010, otherwise known as the "Consolidated Rules and Regulations
Governing Issuance and Implementation of Hold Departure Orders,
Watchlist Orders and Allow Departure Orders," on the ground that it
infringes on the constitutional right to travel. CAIHTE
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to
annul and set aside the following orders issued by the former DOJ
Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41, thus:
1. Watchlist Order No. ASM-11-237 dated August 9, 2011; 1
2. Amended Watchlist Order No. 2011-422 dated September 6,
2011; 2 and
3. Watchlist Order No. 2011-573 dated October 27, 2011. 3
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA)
further seeks the invalidation of the Order 4 dated November 8, 2011,
denying her application for an Allow-Departure Order (ADO).
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin
F. Genuino (Erwin) and Sheryl Genuino-See (Genuinos) pray for the
nullification of the Hold-Departure Order 5 (HDO) No. 2011-64 dated July
22, 2011 issued against them.
Antecedent Facts
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ
Circular No. 17, prescribing rules and regulations governing the issuance
of HDOs. The said issuance was intended to restrain the indiscriminate
issuance of HDOs which impinge on the people's right to travel.
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ
Circular No. 18, prescribing rules and regulations governing the issuance
and implementation of watchlist orders. In particular, it provides for the
power of the DOJ Secretary to issue a Watchlist Order (WLO) against
persons with criminal cases pending preliminary investigation or petition
for review before the DOJ. Further, it states that the DOJ Secretary may
issue an ADO to a person subject of a WLO who intends to leave the
country for some exceptional reasons. 6 Even with the promulgation
of DOJ Circular No. 18, however, DOJ Circular No. 17 remained the
governing rule on the issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the
assailed DOJ Circular No. 41, consolidating DOJ Circular Nos. 17 and 18,
which will govern the issuance and implementation of HDOs, WLOs, and
ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and
regulations contained in DOJ Circular Nos. 17 and 18, as well as all
instructions, issuances or orders or parts thereof which are inconsistent
with its provisions.
After the expiration of GMA's term as President of the Republic of the
Philippines and her subsequent election as Pampanga representative,
criminal complaints were filed against her before the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria
Macapagal-Arroyo, et al., for plunder; 7
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-
Arroyo, et al., for plunder, malversation and/or illegal use of OWWA
funds, graft and corruption, violation of the Omnibus Election Code (OEC),
violation of the Code of Conduct and Ethical Standards for Public Officials,
and qualified theft; 8 and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-
Arroyo, et al., for plunder, malversation, and/or illegal use of public funds,
graft and corruption, violation of the OEC, violation of the Code of
Conduct and Ethical Standards for Public Officials and qualified theft. 9
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No.
2011-422 dated August 9, 2011 against GMA pursuant to her authority
under DOJ Circular No. 41. She also ordered for the inclusion of GMA's
name in the Bureau of Immigration (BI) watchlist. 10 Thereafter, the BI
issued WLO No. ASM-11-237, 11 implementing De Lima's order.
On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422
against GMA to reflect her full name "Ma. Gloria M. Macapagal-Arroyo"
in the BI Watchlist. 12 WLO No. 2011-422, as amended, is valid for a
period of 60 days, or until November 5, 2011, unless sooner terminated
or otherwise extended. This was lifted in due course by De Lima, in an
Order dated November 14, 2011, following the expiration of its validity. 13
Meanwhile, on October 20, 2011, two criminal complaints for Electoral
Sabotage and Violation of the OEC were filed against GMA and her
husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with the
DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation
Committee on 2004 and 2007 Election Fraud, 14 specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding
Team vs. Gloria Macapagal-Arroyo, et al., (for the Province of
Maguindanao), for electoral sabotage/violation of the OEC and COMELEC
Rules and Regulations; 15 and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs.
Gloria Macapagal-Arroyo, et al., for electoral sabotage. 16
Following the filing of criminal complaints, De Lima issued DOJ WLO No.
2011-573 against GMA and Miguel Arroyo on October 27, 2011, with a
validity period of 60 days, or until December 26, 2011, unless sooner
terminated or otherwise extended. 17 DETACa
In three separate letters dated October 20, 2011, October 21, 2011, and
October 24, 2011, GMA requested for the issuance of an ADO, pursuant
to Section 7 of DOJ Circular No. 41, so that she may be able to seek
medical attention from medical specialists abroad for
her hypoparathyroidism and metabolic bone mineral disorder. She
mentioned six different countries where she intends to undergo
38
consultations and treatments: United States of America, Germany,
Singapore, Italy, Spain and Austria. 18 She likewise undertook to return to
the Philippines, once her treatment abroad is completed, and participate
in the proceedings before the DOJ. 19 In support of her application for
ADO, she submitted the following documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano
Belmonte, Jr. to the Secretary of Foreign Affairs, of her Travel Authority;
2. First Endorsement dated October 19, 2011 20 of Artemio A. Adasa, OIC
Secretary General of the House of Representatives, to the Secretary of
Foreign Affairs, amending her Travel Authority to include travel to
Singapore, Spain and Italy;
3. Affidavit dated October 21, 2011, 21 stating the purpose of travel to
Singapore, Germany and Austria;
4. Medical Abstract dated October 22, 2011, 22 signed by Dr. Roberto
Mirasol (Dr. Mirasol);
5. Medical Abstract dated October 24, 2011, 23 signed by Dr. Mario Ver;
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates,
detailing the schedule of consultations with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention
abroad, the Medical Abstract prepared by Dr. Mirasol was referred to then
Secretary of the Department of Health, Dr. Enrique Ona (Dr. Ona) for his
expert opinion as the chief government physician. On October 28, 2011,
Dr. Ona, accompanied by then Chairperson of the Civil Service
Commission, Francisco Duque, visited GMA at her residence in La Vista
Subdivision, Quezon City. Also present at the time of the visit were GMA's
attending doctors who explained her medical condition and the surgical
operations conducted on her. After the visit, Dr. Ona noted that "Mrs.
Arroyo is recuperating reasonably well after having undergone a series of
three major operations." 24
On November 8, 2011, before the resolution of her application for ADO,
GMA filed the present Petition for Certiorari and Prohibition under Rule
65 of the Rules of Courtwith Prayer for the Issuance of a TRO and/or Writ
of Preliminary Injunction, docketed as G.R. No. 199034, to annul and set
aside DOJ Circular No. 41 and WLOs issued against her for allegedly being
unconstitutional. 25
A few hours thereafter, Miguel Arroyo filed a separate Petition
for Certiorari and Prohibition under the same rule, with Prayer for the
Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise
assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-
573. His petition was docketed as G.R. No. 199046. 26
Also, on November 8, 2011, De Lima issued an Order, 27 denying GMA's
application for an ADO, based on the following grounds:
First, there appears to be discrepancy on the medical condition of the
applicant as stated in her affidavit, on the other hand, and the medical
abstract of the physicians as well as her physician's statements to
Secretary Ona during the latter's October 28, 2011 visit to the Applicant,
on the other.
xxx xxx xxx
Second, based on the medical condition of Secretary Ona, there appears
to be no urgent and immediate medical emergency situation for Applicant
to seek medical treatment abroad. x x x.
xxx xxx xxx
Third, Applicant lists several countries as her destination, some of which
were not for purposes of medical consultation, but for attending
conferences. x x x.
xxx xxx xxx
Fourth, while the Applicant's undertaking is to return to the Philippines
upon the completion of her medical treatment, this means that her return
will always depend on said treatment, which, based on her presentation
of her condition, could last indefinitely. x x x.
xxx xxx xxx
Fifth, x x x. Applicant has chosen for her destination five (5) countries,
namely, Singapore, Germany, Austria, Spain and Italy, with which the
Philippines has no existing extradition treaty. x x x.
xxx xxx xxx
IN VIEW OF THE FOREGOING, the application for an Allow Departure
Order (ADO) of Congresswoman MA. GLORIA M. MACAPAGAL-
ARROYO is hereby DENIED for lack of merit.
SO ORDERED. 28
On November 9, 2011, De Lima, together with her co-respondents,
Ricardo V. Paras, III, Chief State Counsel of the DOJ and Ricardo A. David,
Jr., who was then BI Commissioner, (respondents) filed a Very Urgent
Manifestation and Motion 29 in G.R. Nos. 199034 and 199046, praying (1)
that they be given a reasonable time to comment on the petitions and the
applications for a TRO and/or writ of preliminary injunction before any
action on the same is undertaken by the Court; (2) that the applications
for TRO and/or writ of preliminary injunction be denied for lack of merit,
and; (3) that the petitions be set for oral arguments after the filing of
comments thereto. 30
On November 13, 2011, GMA filed a Supplemental Petition 31 which
included a prayer to annul and set aside the Order dated November 8,
2011, denying her application for ADO. On the following day, GMA filed
her Comment/Opposition 32 to the respondents' Very Urgent
Manifestation and Motion dated November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued Resolution, 33 ordering the
consolidation of G.R. Nos. 199034 and 199046, and requiring the
respondents to file their comment thereto not later than November 18,
2011. The Court likewise resolved to issue a TRO in the consolidated
petitions, enjoining the respondents from enforcing or implementing DOJ
Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-
422 dated September 6, 2011, and 2011-573 dated October 27, 2011,
subject to the following conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos
(P2,000,000.00) payable to this Court within five (5) days from notice
hereof. Failure to post the bond within the aforesaid period will result in
the automatic lifting of the temporary restraining order; aDSIHc
(ii) The petitioners shall appoint a legal representative common to both of
them who will receive subpoena, orders and other legal processes on their
behalf during their absence. The petitioners shall submit the name of the
legal representative, also within five (5) days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they
will be traveling, the petitioners shall inform said embassy or consulate by
personal appearance or by phone of their whereabouts at all times; 34
On the very day of the issuance of the TRO, the petitioners tendered their
compliance 35 with the conditions set forth in the Resolution dated
November 15, 2011 of the Court and submitted the following: (1) a copy
of Official Receipt No. 0030227-SC-EP, showing the payment of the
required cash bond of Two Million Pesos (P2,000,000.00); 36 (2)
certification from the Fiscal and Management and Budget Office of the
Supreme Court, showing that the cash bond is already on file with the
office; 37 (3) special powers of attorney executed by the petitioners,
appointing their respective lawyers as their legal representatives; 38 and
39
(4) an undertaking to report to the nearest consular office in the countries
where they will travel. 39
At around 8:00 p.m. on the same day, the petitioners proceeded to the
Ninoy Aquino International Airport (NAIA), with an aide-de-camp and a
private nurse, to take their flights to Singapore. However, the BI officials
at NAIA refused to process their travel documents which ultimately
resulted to them not being able to join their flights. 40
On November 17, 2011, GMA, through counsel, filed an Urgent
Motion 41 for Respondents to Cease and Desist from Preventing
Petitioner GMA from Leaving the Country. She strongly emphasized that
the TRO issued by the Court was immediately executory and that openly
defying the same is tantamount to gross disobedience and resistance to a
lawful order of the Court. 42 Not long after, Miguel Arroyo followed
through with an Urgent Manifestation, 43 adopting and repleading all the
allegations in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent
Motion for Reconsideration and/or to Lift TRO, 44 praying that the Court
reconsider and set aside the TRO issued in the consolidated petitions until
they are duly heard on the merits. In support thereof, they argue that the
requisites for the issuance of a TRO and writ of preliminary injunction
were not established by the petitioners. To begin with, the petitioners
failed to present a clear and mistakable right which needs to be protected
by the issuance of a TRO. While the petitioners anchor their right in
esse on the right to travel under Section 6, Article III of the 1987
Constitution, the said right is not absolute. One of the limitations on the
right to travel is DOJ Circular No. 41, which was issued pursuant to the
rule-making powers of the DOJ in order to keep individuals under
preliminary investigation within the jurisdiction of the Philippine criminal
justice system. With the presumptive constitutionality of DOJ Circular No.
41, the petitioners cannot claim that they have a clear and unmistakable
right to leave the country as they are the very subject of the mentioned
issuance. 45 Moreover, the issuance of a TRO will effectively render any
judgment on the consolidated petitions moot and academic. No amount
of judgment can recompense the irreparable injury that the state is bound
to suffer if the petitioners are permitted to leave the Philippine
jurisdiction. 46
On November 18, 2011, the Court issued a Corporation (PAGCOR), through its Director, Eugene Manalastas, with the
Resolution, 47 requiring De Lima to show cause why she should not be
disciplinarily dealt with or held in contempt of court for failure to comply
with the TRO. She was likewise ordered to immediately comply with the
TRO by allowing the petitioners to leave the country. At the same time,
the Court denied the Consolidated Urgent Motion for Reconsideration
and/or to Lift TRO dated November 16, 2011 filed by the Office of the
Solicitor General. 48
On even date, the COMELEC, upon the recommendation of the Joint DOJ-
COMELEC Preliminary Investigation Committee, filed an information for
the crime of electoral sabotage under Section 43 (b) of Republic Act (R.A.)
No. 9369 against GMA, among others, before the Regional Trial Court
(RTC) of Pasay City, which was docketed as R-PSY-11-04432-CR 49 and
raffled to Branch 112. A warrant of arrest for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA, the
respondents filed an Urgent Manifestation with Motion to Lift
TRO. 50 They argue that the filing of the information for electoral
sabotage against GMA is a supervening event which warrants the lifting
of the TRO issued by this Court. They asseverate that the filing of the case
vests the trial court the jurisdiction to rule on the disposition of the case.
The issue therefore on the validity of the assailed WLOs should properly
be raised and threshed out before the RTC of Pasay City where the
criminal case against GMA is pending, to the exclusion of all other
courts. 51
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing
the complaint for violation of OEC and electoral sabotage against Miguel
Arroyo, among others, which stood as the basis for the issuance of WLO
No. 2011-573. Conformably, the DOJ issued an Order dated November 21,
2011, 52 lifting WLO No. 2011-573 against Miguel Arroyo and ordering for
the removal of his name in the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded
as scheduled on November 22, 2011, despite requests from the
petitioners' counsels for an earlier date. Upon the conclusion of the oral
arguments on December 1, 2011, the parties were required to submit
their respective memoranda. 53
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22,
2011 54 was issued against Genuinos, among others, after criminal
complaints for Malversation, as defined under Article 217 of the Revised
Penal Code (RPC), and Violation of Sections 3 (e), (g), (h) and (i) of R.A. No.
3019 were filed against them by the Philippine Amusement and Gaming
DOJ on June 14, 2011, for the supposed diversion of funds for the film
"Baler." This was followed by the filing of another complaint for Plunder
under R.A. No. 7080, Malversation under Article 217 of the RPC and
Violation of Section 3 of R.A. No. 3019, against the same petitioners, as
well as members and incorporators of BIDA Production, Inc. Wildformat,
Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds into
the coffers of BIDA entities. Another complaint was thereafter filed
against Efraim and Erwin was filed before the Office of the Ombudsman
for violation of R.A. No. 3019 for allegedly releasing PAGCOR funds
intended for the Philippine Sports Commission directly to the Philippine
Amateur Swimming Association, Inc. 55 In a Letter 56 dated July 29, 2011
addressed to Chief State Counsel Ricardo Paras, the Genuinos, through
counsel, requested that the HDO against them be lifted. This plea was
however denied in a Letter 57 dated August 1, 2011 which prompted the
institution of the present petition by the Genuinos. In a
Resolution 58 dated April 21, 2015, the Court consolidated the said
petition with G.R. Nos. 199034 and 199046.
The Court, after going through the respective memoranda of the parties
and their pleadings, sums up the issues for consideration as follows:
I
WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;
II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO.
41; and
III
WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY
GUILTY OF CONTEMPT OF COURT. ETHIDa
Ruling of the Court
The Court may exercise its power of
judicial review despite the filing of
information for electoral sabotage
against GMA
It is the respondents' contention that the present petitions should be
dismissed for lack of a justiciable controversy. They argue that the instant
petitions had been rendered moot and academic by (1) the expiration of
the WLO No. 422 dated August 9, 2011, as amended by the Order dated
September 6, 2011; 59 (2) the filing of an information for electoral
sabotage against GMA, 60 and; (3) the lifting of the WLO No. 2011-573
dated November 14, 2011 against Miguel Arroyo and the subsequent
deletion of his name from the BI watchlist after the COMELEC en
banc dismissed the case for electoral sabotage against him. 61
40
The power of judicial review is articulated in Section 1, Article VIII of
the 1987 Constitution which reads:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. 62
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case. 63
Except for the first requisite, there is no question with respect to the
existence of the three (3) other requisites. Petitioners have the locus
standi to initiate the petition as they claimed to have been unlawfully
subjected to restraint on their right to travel owing to the issuance of
WLOs against them by authority of DOJ Circular No. 41. Also, they have
contested the constitutionality of the questioned issuances at the most
opportune time.
The respondents, however, claim that the instant petitions have become
moot and academic since there is no longer any actual case or controversy
to resolve following the subsequent filing of an information for election
sabotage against GMA on November 18, 2011 and the lifting of WLO No.
2011-573 against Miguel Arroyo and the deletion of his name from the BI
watchlist after the dismissal of the complaint for electoral sabotage
against him.
To be clear, "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." 64 When the issues have been resolved or when the circumstances
from which the legal controversy arose no longer exist, the case is
rendered moot and academic. "A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or
value." 65
The Court believes that the supervening events following the filing of the
instant petitions, while may have seemed to moot the instant petitions,
will not preclude it from ruling on the constitutional issues raised by the
petitioners. The Court, after assessing the necessity and the invaluable
gain that the members of the bar, as well as the public may realize from
the academic discussion of the constitutional issues raised in the petition,
resolves to put to rest the lingering constitutional questions that abound
the assailed issuance. This is not a novel occurrence as the Court, in a
number of occasions, took up cases up to its conclusion notwithstanding
claim of mootness.
In Evelio Javier vs. The Commission on Elections, 66 the Court so
emphatically stated, thus:
The Supreme Court is not only the highest arbiter of legal questions but
also the conscience of the government. The citizen comes to us in quest
of law but we must also give him justice. The two are not always the same.
There are times when we cannot grant the latter because the issue has
been settled and decision is no longer possible according to the law. But
there are also times when although the dispute has disappeared, as in this
case, it nevertheless cries out to be resolved. Justice demands that we act
then, not only for the vindication of the outraged right, though gone, but
also for the guidance of and as a restraint upon the future. 67
In Prof. David vs. Pres. Macapagal-Arroyo, 68 the Court proceeded in
ruling on the constitutionality of Presidential Proclamation (PP) No.
1017 in which GMA declared a state of national emergency, and General
Order No. 5 (G.O. No. 5), which ordered the members of the Armed Forces
of the Philippines and the Philippine National Police to carry all necessary
actions to suppress acts of terrorism and lawless violence,
notwithstanding the issuance of PP 1021 lifting both issuances. The Court
articulated, thus:
The Court holds that President Arroyo's 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 unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative.
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; second, the exceptional character of the situation and
the paramount public interest is involved; third, when constitutional issue
raised requires formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of repetition yet
evading review. 69 (Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances that warrant the
Court's exercise of its power of judicial review. The petitioners impute the
respondents of violating their constitutional right to travel through the
enforcement of DOJ Circular No. 41. They claim that the issuance
unnecessarily places a restraint on the right to travel even in the absence
of the grounds provided in the Constitution. cSEDTC
There is also no question that the instant petitions involved a matter of
public interest as the petitioners are not alone in this predicament and
there can be several more in the future who may be similarly situated. It
is not far fetched that a similar challenge to the constitutionality of DOJ
Circular No. 41 will recur considering the thousands of names listed in the
watch list of the DOJ, who may brave to question the supposed illegality
of the issuance. Thus, it is in the interest of the public, as well as for the
education of the members of the bench and the bar, that this Court takes
up the instant petitions and resolves the question on the constitutionality
of DOJ Circular No. 41.
The Constitution is inviolable and
supreme of all laws
We begin by emphasizing that the Constitution is the fundamental,
paramount and supreme law of the nation; it is deemed written in every
statute and contract. 70 If a law or an administrative rule violates any
norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction.
It contains the compendium of the guaranteed rights of individuals, as
well as the powers granted to and restrictions imposed on government
officials and instrumentalities. It is that lone unifying code, an inviolable
authority that demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are
enumerated in the Bill of Rights contained in Article III. In particular,
Section 1 thereof provides:
41
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection
of the laws.
The guaranty of liberty does not, however, imply unbridled license for an
individual to do whatever he pleases, for each is given an equal right to
enjoy his liberties, with no one superior over another. Hence, the
enjoyment of one's liberties must not infringe on anyone else's equal
entitlement.
Surely, the Bill of Rights operates as a protective cloak under which the
individual may assert his liberties. Nonetheless, "the Bill of Rights itself
does not purport to be an absolute guaranty of individual rights and
liberties. Even liberty itself, the greatest of all rights, is not unrestricted
license to act according to one's will. It is subject to the far more overriding
demands and requirements of the greater number." 71
It is therefore reasonable that in order to achieve communal peace and
public welfare, calculated limitations in the exercise of individual
freedoms are necessary. Thus, in many significant provisions,
the Constitution itself has provided for exceptions and restrictions to
balance the free exercise of rights with the equally important ends of
promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this
jurisdiction as an acceptable limitation to the exercise of individual rights.
In Philippine Association of Service Exporters, Inc. vs. Drilon, 72 it was
defined as the inherent and plenary power in the State which enables it
to prohibit all things hurtful to the comfort, safety, and welfare of society.
It is rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional
rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary
measures calculated to ensure communal peace, safety, good order, and
welfare. 73
Still, it must be underscored that in a constitutional government like ours,
liberty is the rule and restraint the exception. 74 Thus, restrictions in the
exercise of fundamental liberties are heavily guarded against so that they
may not unreasonably interfere with the free exercise of constitutional
guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot be
deprived without due process of law. 75 It is part and parcel of the
guarantee of freedom of movement that the Constitution affords its
citizen. Pertinently, Section 6, Article III of the Constitution provides:
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety or public health, as may be provided by
law.
Liberty under the foregoing clause includes the right to choose one's
residence, to leave it whenever he pleases and to travel wherever he
wills. 76 Thus, in Zacarias Villavicencio vs. Justo Lucban, 77 the Court held
illegal the action of the Mayor of Manila in expelling women who were
known prostitutes and sending them to Davao in order to eradicate vices
and immoral activities proliferated by the said subjects. It was held that
regardless of the mayor's laudable intentions, no person may compel
another to change his residence without being expressly authorized by
law or regulation.
It is apparent, however, that the right to travel is not absolute. There are
constitutional, statutory and inherent limitations regulating the right to
travel. Section 6 itself provides that the right to travel may be impaired
only in the interest of national security, public safety or public health, as
may be provided by law. In Silverio vs. Court of Appeals, 78 the Court
elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to
mean that while the liberty of travel may be impaired even without Court
Order, the appropriate executive officers or administrative authorities are
not armed with arbitrary discretion to impose limitations. They can
impose limits only on the basis of "national security, public safety, or
public health" and "as may be provided by law," a limitive phrase which
did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J.,
Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international travel imposed
under the previous regime when there was a Travel Processing Center,
which issued certificates of eligibility to travel upon application of an
interested party. 79 (Emphasis ours)
Clearly, under the provision, there are only three considerations that may
permit a restriction on the right to travel: national security, public safety
or public health. As a further requirement, there must be an explicit
provision of statutory law or the Rules of Court 80 providing for the
impairment. The requirement for a legislative enactment was purposely
added to prevent inordinate restraints on the person's right to travel by
administrative officials who may be tempted to wield authority under the
guise of national security, public safety or public health. This is in keeping
with the principle that ours is a government of laws and not of men and
also with the canon that provisions of law limiting the enjoyment of liberty
should be construed against the government and in favor of the
individual. 81 SDAaTC
The necessity of a law before a curtailment in the freedom of movement
may be permitted is apparent in the deliberations of the members of the
Constitutional Commission. In particular, Fr. Joaquin Bernas, in his
sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it
says that the phrase "and changing the same" is taken from the 1935
version; that is, changing the abode. The addition of the phrase WITHIN
THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be
impaired on order of a court or without the order of a court, the
impairment must be in accordance with the prescriptions of law; that is,
it is not left to the discretion of any public officer. 82
It is well to remember that under the 1973 Constitution, the right to travel
is compounded with the liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and of travel shall not,
be impaired except upon lawful order of the court, or when necessary in
the interest of national security, public safety, or public health. (Emphasis
ours)
The provision, however, proved inadequate to afford protection to
ordinary citizens who were subjected to "hamletting" under the Marcos
regime. 83 Realizing the loophole in the provision, the members of the
Constitutional Commission agreed that a safeguard must be incorporated
in the provision in order to avoid this unwanted consequence. Thus, the
Commission meticulously framed the subject provision in such a manner
that the right cannot be subjected to the whims of any administrative
officer. In addressing the loophole, they found that requiring the authority
of a law most viable in preventing unnecessary intrusion in the freedom
of movement, viz.:
MR. NOLLEDO. x x x
My next question is with respect to Section 5, lines 8 to 12 of page 2. It
says here that the liberty of abode shall not be impaired except upon
lawful order of the court or — underscoring the word "or" — when
necessary in the interest of national security, public safety or public
health. So, in the first part, there is the word "court"; in the second part,
42
it seems that the question rises as to who determines whether it is in the
interest of national security, public safety, or public health. May it be
determined merely by administrative authorities?
FR. BERNAS.
The understanding we have of this is that, yes, it may be determined
by administrative authorities provided that they act, according to line
9, within the limits prescribed by law. For instance when this thing came
up; what was in mind were passport officers. If they want to deny a
passport on the first instance, do they have to go to court? The position
is, they may deny a passport provided that the denial is based on the limits
prescribed by law. The phrase "within the limits prescribed by law" is
something which is added here. That did not exist in the old provision. 84
During the discussions, however, the Commission realized the necessity
of separating the concept of liberty of abode and the right to travel in
order to avoid untoward results. Ultimately, distinct safeguards were laid
down which will protect the liberty of abode and the right to travel
separately, viz.:
MR. TADEO.
Mr. Presiding Officer, anterior amendment on Section 5, page 2, line
11. Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or"
upang maiwasan natin ang walang pakundangang paglabag sa liberty of
abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng
kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang
"hamletting" upon lawful order of the court. x x x.
xxx xxx xxx
MR. RODRIGO.
Aside from that, this includes the right to travel?
FR. BERNAS.
Yes.
MR. RODRIGO.
And there are cases when passports may not be granted or passports
already granted may be cancelled. If the amendment is approved, then
passports may not be cancelled unless it is ordered by the court. Is that
the intention? x x x
FR. BERNAS.
Yes
MR. RODRIGO.
But another right is involved here and that is to travel.
SUSPENSION OF SESSION
FR. BERNAS.
Mr. Presiding Officer, may I request a suspension so that we can
separate the liberty of abode and or changing the same from the right to
travel, because they may necessitate different provisions.
THE PRESIDING OFFICER (Mr. Bengzon).
The session is suspended. acEHCD
xxx xxx xxx
RESUMPTION OF SESSION
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Bengzon).
The session is resumed. Commissioner Bernas is recognized.
FR. BERNAS.
The proposal is amended to read:
"The liberty of abode and of changing the same within the limits
prescribed by law, shall not be impaired except upon lawful order of the
court. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE
INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH AS
MAY BE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon).
The Committee has accepted the amendment, as amended. Is there any
objection? (Silence) The Chair hears none; the amendment, as amended,
is approved. 85
It is clear from the foregoing that the liberty of abode may only be
impaired by a lawful order of the court and, on the one hand, the right to
travel may only be impaired by a law that concerns national security,
public safety or public health. Therefore, when the exigencies of times call
for a limitation on the right to travel, the Congress must respond to the
need by explicitly providing for the restriction in a law. This is in deference
to the primacy of the right to travel, being a constitutionally-protected
right and not simply a statutory right, that it can only be curtailed by a
legislative enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin
M. Drilon, 86 the Court upheld the validity of the Department Order No.
1, Series of 1988, issued by the Department of Labor and Employment,
which temporarily suspended the deployment of domestic and household
workers abroad. The measure was taken in response to escalating number
of female workers abroad who were subjected to exploitative working
conditions, with some even reported physical and personal abuse. The
Court held that Department Order No. 1 is a valid implementation of
the Labor Code, particularly, the policy to "afford protection to labor."
Public safety considerations justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS)-
Office of the Court Administrator (OCA) vs. Wilma Salvation P.
Heusdens, 87 the Court enumerated the statutes which specifically
provide for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the
following:
1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the
right to travel of an individual charged with the crime of terrorism even
though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said
law, the Secretary of Foreign Affairs or his authorized consular officer may
refuse the issuance of, restrict the use of, or withdraw, a passport of a
Filipino citizen.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant
to the provisions thereof, the [BI], in order to manage migration and curb
trafficking in persons, issued Memorandum Order Radir No. 2011-011,
allowing its Travel Control and Enforcement Unit to "offload passengers
with fraudulent travel documents, doubtful purpose of travel, including
possible victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No.
8042, as amended by R.A. No. 10022. In enforcement of said law, the
Philippine Overseas Employment Administration (POEA) may refuse to
issue deployment permit to a specific country that effectively prevents
our migrant workers to enter such country.
43
5] The Act on Violence against Women and Children or R.A. No. 9262. The
law restricts movement of an individual against whom the protection
order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto,
the Inter-Country Adoption Board may issue rules restrictive of an
adoptee's right to travel "to protect the Filipino child from abuse,
exploitation, trafficking and/or sale or any other practice in connection
with adoption which is harmful, detrimental, or prejudicial to the
child." 88
In any case, when there is a dilemma between an individual claiming the
exercise of a constitutional right vis-à-vis the state's assertion of authority
to restrict the same, any doubt must, at all times, be resolved in favor of
the free exercise of the right, absent any explicit provision of law to the
contrary.
The issuance of DOJ Circular No. 41
has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of
identifying the authority from which the DOJ believed its power to restrain
the right to travel emanates. To begin with, there is no law particularly
providing for the authority of the secretary of justice to curtail the exercise
of the right to travel, in the interest of national security, public safety or
public health. As it is, the only ground of the former DOJ Secretary in
restraining the petitioners, at that time, was the pendency of the
preliminary investigation of the Joint DOJ-COMELEC Preliminary
Investigation Committee on the complaint for electoral sabotage against
them. 89
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative
enactment which underwent the scrutiny and concurrence of lawmakers,
and submitted to the President for approval. It is a mere administrative
issuance apparently designed to carry out the provisions of an enabling
law which the former DOJ Secretary believed to be Executive Order (E.O.)
No. 292, otherwise known as the "Administrative Code of 1987." She
opined that DOJ Circular No. 41 was validly issued pursuant to the
agency's rule-making powers provided in Sections 1 and 3, Book IV, Title
III, Chapter 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the
mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-making
powers, among others. It is the "power to make rules and regulations
which results in delegated legislation that is within the confines of the
granting statute and the doctrine of non-delegability and separability of
powers." 90 In the exercise of this power, the rules and regulations that
administrative agencies promulgate should be within the scope of the
statutory authority granted by the legislature to the administrative
agency. It is required that the regulation be germane to the objects and
purposes of the law, and be not in contradiction to, but in conformity with,
the standards prescribed by law. They must conform to and be consistent
with the provisions of the enabling statute in order for such rule or
regulation to be valid. 91 SDHTEC
It is, however, important to stress that before there can even be a valid
administrative issuance, there must first be a showing that the delegation
of legislative power is itself valid. It is valid only if there is a law that (a) is
complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate; and (b) fixes a standard the limits of
which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions. 92
A painstaking examination of the provisions being relied upon by the
former DOJ Secretary will disclose that they do not particularly vest the
DOJ the authority to issue DOJ Circular No. 41 which effectively restricts
the right to travel through the issuance of WLOs and HDOs. Sections 1 and
3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy. — It is the declared policy of the State to
provide the government with a principal law agency which shall be both
its legal counsel and prosecution arm; administer the criminal justice
system in accordance with the accepted processes thereof consisting in
the investigation of the crimes, prosecution of offenders and
administration of the correctional system; implement the laws on the
admission and stay of aliens, citizenship, land titling system, and
settlement of land problems involving small landowners and member of
indigenous cultural minorities; and provide free legal services to indigent
members of the society.
xxx xxx xxx
Section 3. Powers and Functions. — to accomplish its mandate, the
Department shall have the following powers and functions:
(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system;
xxx xxx xxx
(6) Provide immigration and naturalization regulatory services and
implement the laws governing citizenship and the admission and stay of
aliens;
(7) Provide legal services to the national government and its functionaries,
including government-owned and controlled corporations and their
subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis supplied)
A plain reading of the foregoing provisions shows that they are mere
general provisions designed to lay down the purposes of the enactment
and the broad enumeration of the powers and functions of the DOJ. In no
way can they be interpreted as a grant of power to curtail a fundamental
right as the language of the provision itself does not lend to that stretched
construction. To be specific, Section 1 is simply a declaration of policy, the
essence of the law, which provides for the statement of the guiding
principle, the purpose and the necessity for the enactment. The
declaration of policy is most useful in statutory construction as an aid in
the interpretation of the meaning of the substantive provisions of the law.
It is preliminary to the substantive portions of the law and certainly not
the part in which the more significant and particular mandates are
contained. The suggestion of the former DOJ Secretary that the basis of
the issuance of DOJ Circular No. 41 is contained in the declaration of
policy of E.O. No. 292 not only defeats logic but also the basic style of
drafting a decent piece of legislation because it supposes that the authors
of the law included the operative and substantive provisions in the
declaration of policy when its objective is merely to introduce and
highlight the purpose of the law.
Succinctly, "a declaration of policy contained in a statute is, like a
preamble, not a part of the substantive portions of the act. Such
provisions are available for clarification of ambiguous substantive
portions of the act, but may not be used to create ambiguity in other
substantive provisions." 93
In the same way, Section 3 does not authorize the DOJ to issue WLOs and
HDOs to restrict the constitutional right to travel. There is even no
mention of the exigencies stated in the Constitution that will justify the
impairment. The provision simply grants the DOJ the power to investigate
the commission of crimes and prosecute offenders, which are basically the
functions of the agency. However, it does not carry with it the power to
indiscriminately devise all means it deems proper in performing its
functions without regard to constitutionally-protected rights. The
curtailment of a fundamental right, which is what DOJ Circular No.
44
41 does, cannot be read into the mentioned provision of the law. Any
impairment or restriction in the exercise of a constitutional right must be
clear, categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what rules
and regulations may be promulgated by an administrative body, as well as
with respect to what fields are subject to regulation by it. It may not make
rules and regulations which are inconsistent with the provisions of
the Constitution or a statute, particularly the statute it is administering or
which created it, or which are in derogation of, or defeat, the purpose of
a statute. 94
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No.
292, which simply provides for the types of issuances that administrative
agencies, in general, may issue. It does not speak of any authority or
power but rather a mere clarification on the nature of the issuances that
may be issued by a secretary or head of agency. The innocuous provision
reads as follows:
Section 50. General Classification of Issuances. — The administrative
issuances of Secretaries and heads of bureaus, offices and agencies shall
be in the form of circulars or orders.
(1) Circulars shall refer to issuance prescribing policies, rules and
regulations, and procedures promulgated pursuant to law, applicable to
individuals and organizations outside the Government and designed to
supplement provisions of the law or to provide means for carrying them
out, including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials,
or employees, concerning specific matters including assignments, detail
and transfer of personnel, for observance or compliance by all concerned.
(Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O.
292 cited in the memorandum of the former DOJ Secretary cannot justify
the restriction on the right to travel in DOJ Circular No. 41. The
memorandum particularly made reference to Subsections 3, 4 and 9
which state:
Section 7. Powers and Functions of the Secretary. — The Secretary shall:
(1) Advise the President in issuing executive orders, regulations,
proclamations and other issuances, the promulgation of which is expressly
vested by law in the President relative to matters under the jurisdiction of
the Department; AScHCD
(2) Establish the policies and standards for the operation of the
Department pursuant to the approved programs of governments;
(3) Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient
administration of the offices under the Secretary and for proper
execution of the laws relative thereto. These issuances shall not
prescribe penalties for their violation, except when expressly authorized
by law;
xxx xxx xxx
(9) Perform such other functions as may be provided by law. (Emphasis
Ours)
It is indisputable that the secretaries of government agencies have the
power to promulgate rules and regulations that will aid in the
performance of their functions. This is adjunct to the power of
administrative agencies to execute laws and does not require the
authority of a law. This is, however, different from the delegated
legislative power to promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List
(formerly AASJS), et al. vs. Hon. Purisima, et al. 95 is illuminating:
The inherent power of the Executive to adopt rules and regulations to
execute or implement the law is different from the delegated legislative
power to prescribe rules. The inherent power of the Executive to adopt
rules to execute the law does not require any legislative standards for its
exercise while the delegated legislative power requires sufficient
legislative standards for its exercise.
xxx xxx xxx
Whether the rule-making power by the Executive is a delegated legislative
power or an inherent Executive power depends on the nature of the rule-
making power involved. If the rule-making power is inherently a legislative
power, such as the power to fix tariff rates, the rule-making power of the
Executive is a delegated legislative power. In such event, the delegated
power can be exercised only if sufficient standards are prescribed in the
law delegating the power.
If the rules are issued by the President in implementation or execution of
self-executory constitutional powers vested in the President, the rule-
making power of the President is not a delegated legislative power. x x x.
The rule is that the President can execute the law without any delegation
of power from the legislature. Otherwise, the President becomes a mere
figure-head and not the sole Executive of the Government. 96
The questioned circular does not come under the inherent power of the
executive department to adopt rules and regulations as clearly the
issuance of HDO and WLO is not the DOJ's business. As such, it is a
compulsory requirement that there be an existing law, complete and
sufficient in itself, conferring the expressed authority to the concerned
agency to promulgate rules. On its own, the DOJ cannot make rules, its
authority being confined to execution of laws. This is the import of the
terms "when expressly provided by law" or "as may be provided by law"
stated in Sections 7 (4) and 7 (9), Chapter 2, Title III, Book IV of E.O. 292.
The DOJ is confined to filling in the gaps and the necessary details in
carrying into effect the law as enacted. 97 Without a clear mandate of an
existing law, an administrative issuance is ultra vires.
Consistent with the foregoing, there must be an enabling law from
which DOJ Circular No. 41 must derive its life. Unfortunately, all of the
supposed statutory authorities relied upon by the DOJ did not pass the
completeness test and sufficient standard test. The DOJ miserably failed
to establish the existence of the enabling law that will justify the issuance
of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing
its mandate only begs the question. The purpose, no matter how
commendable, will not obliterate the lack of authority of the DOJ to issue
the said issuance. Surely, the DOJ must have the best intentions in
promulgating DOJ Circular No. 41, but the end will not justify the means.
To sacrifice individual liberties because of a perceived good is disastrous
to democracy. In Association of Small Landowners in the Philippines, Inc.
vs. Secretary of Agrarian Reform, 98 the Court emphasized:
One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the means.
It is not enough that there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the Constitution. Mere
expediency will not excuse constitutional shortcuts. There is no question
that not even the strongest moral conviction or the most urgent public
need, subject only to a few notable exceptions, will excuse the bypassing
of an individual's rights. It is no exaggeration to say that a person invoking
a right guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that right. 99
45
The DOJ would however insist that the resulting infringement of liberty is
merely incidental, together with the consequent inconvenience, hardship
or loss to the person being subjected to the restriction and that the
ultimate objective is to preserve the investigative powers of the DOJ and
public order. 100 It posits that the issuance ensures the presence within
the country of the respondents during the preliminary
investigation. 101 Be that as it may, no objective will ever suffice to
legitimize desecration of a fundamental right. To relegate the intrusion as
negligible in view of the supposed gains is to undermine the inviolable
nature of the protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes
and prosecute offenders. Its zealousness in pursuing its mandate is
laudable but more admirable when tempered by fairness and justice. It
must constantly be reminded that in the hierarchy of rights, the Bill of
Rights takes precedence over the right of the State to prosecute, and
when weighed against each other, the scales of justice tilt towards the
former. 102 Thus, in Allado vs. Diokno, 103 the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its people
from vicious acts which endanger the proper administration of justice;
hence, the State has every right to prosecute and punish violators of the
law. This is essential for its self-preservation, nay, its very existence. But
this does not confer a license for pointless assaults on its citizens. The right
of the State to prosecute is not a carte blanche for government agents to
defy and disregard the rights of its citizens under the Constitution. 104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No.
41 in that to allow the petitioners, who are under preliminary
investigation, to exercise an untrammelled right to travel, especially when
the risk of flight is distinctly high will surely impede the efficient and
effective operation of the justice system. The absence of the petitioners,
it asseverates, would mean that the farthest criminal proceeding they
could go would be the filing of the criminal information since they cannot
be arraigned in absentia. 105
The predicament of the DOJ is understandable yet untenable for relying
on grounds other what is permitted within the confines of its own power
and the nature of preliminary investigation itself. The Court, in Paderanga
vs. Drilon, 106 made a clarification on the nature of a preliminary
investigation, thus:
A preliminary investigation is x x x 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. x x x 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. 107 AcICHD
It bears emphasizing that the conduct of a preliminary investigation is an
implement of due process which essentially benefits the accused as it
accords an opportunity for the presentation of his side with regard to the
accusation. 108 The accused may, however, opt to waive his presence in
the preliminary investigation. In any case, whether the accused responds
to a subpoena, the investigating prosecutor shall resolve the complaint
within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the
presence of the accused is not necessary for the prosecutor to discharge
his investigatory duties. If the accused chooses to waive his presence or
fails to submit countervailing evidence, that is his own lookout.
Ultimately, he shall be bound by the determination of the prosecutor on
the presence of probable cause and he cannot claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement
imposed by DOJ Circular No. 41 on the ground that it is necessary to
ensure presence and attendance in the preliminary investigation of the
complaints. There is also no authority of law granting it the power to
compel the attendance of the subjects of a preliminary investigation,
pursuant to its investigatory powers under E.O. No. 292. Its investigatory
power is simply inquisitorial and, unfortunately, not broad enough to
embrace the imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the
situation upon itself and draft an administrative issuance to keep the
individual within the Philippine jurisdiction so that he may not be able to
evade criminal prosecution and consequent liability. It is an arrogation of
power it does not have; it is a usurpation of function that properly belongs
to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an
unauthorized act of the DOJ of empowering itself under the pretext of dire
exigency or urgent necessity. This action runs afoul the separation of
powers between the three branches of the government and cannot be
upheld. Even the Supreme Court, in the exercise of its power to
promulgate rules is limited in that the same shall not diminish, increase,
or modify substantive rights. 109 This should have cautioned the DOJ,
which is only one of the many agencies of the executive branch, to be
more scrutinizing in its actions especially when they affect substantive
rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the
restrictions on the right to travel were found reasonable, i.e., New York v.
O'Neill, 110 Kwong vs. Presidential Commission on Good
Government 111 and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to
support its position for the reasons stated earlier in this disquisition. In
the same manner, Kant Kwong is not an appropriate authority since the
Court never ruled on the constitutionality of the authority of the PCGG to
issue HDOs in the said case. On the contrary, there was an implied
recognition of the validity of the PCGG's Rules and Regulations as the
petitioners therein even referred to its provisions to challenge the PCGG's
refusal to lift the HDOs issued against them despite the lapse of the period
of its effectivity. The petitioners never raised any issue as to the
constitutionality of Section 2 of the PCGG Rules and Regulations but only
questioned the agency's non-observance of the rules particularly on the
lifting of HDOs. This is strikingly different from the instant case where the
main issue is the constitutionality of the authority of the DOJ Secretary to
issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the
respondents' case. In the said case, the respondent therein questioned
the constitutionality of a Florida statute entitled "Uniform Law to Secure
the Attendance of Witnesses from Within or Without a State in Criminal
Proceedings," under which authority a judge of the Court of General
Sessions, New York County requested the Circuit Court of Dade County,
Florida, where he was at that time, that he be given into the custody of
New York authorities and be transported to New York to testify in a grand
jury proceeding. The US Supreme Court upheld the constitutionality of the
law, ruling that every citizen, when properly summoned, has the
obligation to give testimony and the same will not amount to violation of
the freedom to travel but, at most, a mere temporary interference. The
clear deviation of the instant case from New York is that in the latter case
there is a law specifically enacted to require the attendance of the
respondent to court proceedings to give his testimony, whenever it is
needed. Also, after the respondent fulfils his obligation to give testimony,
he is absolutely free to return in the state where he was found or to his
state of residence, at the expense of the requesting state. In contrast, DOJ
Circular No. 41 does not have an enabling law where it could have derived
its authority to interfere with the exercise of the right to travel. Further,
the respondent is subjected to continuing restraint in his right to travel as
46
he is not allowed to go until he is given, if he will ever be given, an ADO by
the secretary of justice.
The DOJ cannot issue DOJ Circular
No. 41 under the guise of police
power
The DOJ's reliance on the police power of the state cannot also be
countenanced. Police power pertains to the "state authority to enact
legislation that may interfere with personal liberty or property in order to
promote the general welfare." 112 "It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things hurtful
to the comfort, safety, and welfare of society." 113 Verily, the exercise of
this power is primarily lodged with the legislature but may be wielded by
the President and administrative boards, as well as the lawmaking bodies
on all municipal levels, including the barangay, by virtue of a valid
delegation of power. 114
It bears noting, however, that police power may only be validly exercised
if (a) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State, and (b) the means
employed are reasonably necessary to the attainment of the object
sought to be accomplished and not unduly oppressive upon
individuals. 115
On its own, the DOJ cannot wield police power since the authority pertains
to Congress. Even if it claims to be exercising the same as the alter ego of
the President, it must first establish the presence of a definite legislative
enactment evidencing the delegation of power from its principal. This, the
DOJ failed to do. There is likewise no showing that the curtailment of the
right to travel imposed by DOJ Circular No. 41 was reasonably necessary
in order for it to perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be reasonable
and not repugnant to the Constitution. 116 It must never be utilized to
espouse actions that violate the Constitution. Any act, however noble its
intentions, is void if it violates the Constitution. 117 In the clear language
of the Constitution, it is only in the interest of national security, public
safety and public health that the right to travel may be impaired. None
one of the mentioned circumstances was invoked by the DOJ as its
premise for the promulgation of DOJ Circular No. 41. TAIaHE
DOJ Circular No. 41 transcends
constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other
serious infirmities that render it invalid. The apparent vagueness of the
circular as to the distinction between a HDO and WLO is violative of the
due process clause. An act that is vague "violates due process for failure
to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid and leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the Government
muscle." 118 Here, the distinction is significant as it will inform the
respondents of the grounds, effects and the measures they may take to
contest the issuance against them. Verily, there must be a standard by
which a HDO or WLO may be issued, particularly against those whose
cases are still under preliminary investigation, since at that stage there is
yet no criminal information against them which could have warranted the
restraint.
Further, a reading of the introductory provisions of DOJ Circular No.
41 shows that it emanates from the DOJ's assumption of powers that is
not actually conferred to it. In one of the whereas clauses of the issuance,
it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the
Office of the Court Administrator, clearly state that "[HDO] shall be issued
only in criminal cases within the exclusive jurisdiction of the [RTCs]," said
circulars are, however, silent with respect to cases falling within the
jurisdiction of courts below the RTC as well as those pending
determination by government prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ
Circular No. 41 was the supposed inadequacy of the issuances of this
Court pertaining to HDOs, the more pertinent of which is SC Circular No.
39-97. 119 It is the DOJ's impression that with the silence of the circular
with regard to the issuance of HDOs in cases falling within the jurisdiction
of the MTC and those still pending investigation, it can take the initiative
in filling in the deficiency. It is doubtful, however, that the DOJ Secretary
may undertake such action since the issuance of HDOs is an exercise of
this Court's inherent power "to preserve and to maintain the effectiveness
of its jurisdiction over the case and the person of the accused." 120 It is
an exercise of judicial power which belongs to the Court alone, and which
the DOJ, even as the principal law agency of the government, does not
have the authority to wield.
Moreover, the silence of the circular on the matters which are being
addressed by DOJ Circular No. 41 is not without good reasons. Circular No.
39-97 was specifically issued to avoid indiscriminate issuance of HDOs
resulting to the inconvenience of the parties affected as the same could
amount to an infringement on the right and liberty of an individual to
travel. Contrary to the understanding of the DOJ, the Court intentionally
held that the issuance of HDOs shall pertain only to criminal cases within
the exclusive jurisdiction of the RTC, to the exclusion of criminal cases
falling within the jurisdiction of the MTC and all other cases. The intention
was made clear with the use of the term "only." The reason lies in seeking
equilibrium between the state's interest over the prosecution of the case
considering the gravity of the offense involved and the individual's
exercise of his right to travel. Thus, the circular permits the intrusion on
the right to travel only when the criminal case filed against the individual
is within the exclusive jurisdiction of the RTC, or those that pertains to
more serious crimes or offenses that are punishable with imprisonment
of more than six years. The exclusion of criminal cases within the
jurisdiction of the MTC is justified by the fact that they pertain to less
serious offenses which is not commensurate with the curtailment of a
fundamental right. Much less is the reason to impose restraint on the right
to travel of respondents of criminal cases still pending investigation since
at that stage no information has yet been filed in court against them. It is
for these reasons that Circular No. 39-97 mandated that HDO may only be
issued in criminal cases filed with the RTC and withheld the same power
from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by
assuming powers which have been withheld from the lower courts
in Circular No. 39-97. In the questioned circular, the DOJ Secretary may
issue HDO against the accused in criminal cases within the jurisdiction of
the MTC 121 and against defendants, respondents and witnesses in labor
or administrative cases, 122 no matter how unwilling they may be. He
may also issue WLO against accused in criminal cases pending before the
RTC, 123therefore making himself in equal footing with the RTC, which is
authorized by law to issue HDO in the same instance. The DOJ Secretary
may likewise issue WLO against respondents in criminal cases pending
preliminary investigation, petition for review or motion for
reconsideration before the DOJ. 124 More striking is the authority of the
DOJ Secretary to issue a HDO or WLO motu proprio, even in the absence
of the grounds stated in the issuance if he deems necessary in the interest
of national security, public safety or public health. 125
It bears noting as well that the effect of the HDO and WLO in DOJ Circular
No. 41 is too obtrusive as it remains effective even after the lapse of its
validity period as long as the DOJ Secretary does not approve the lifting or
cancellation of the same. Thus, the respondent continually suffers the
restraint in his mobility as he awaits a favorable indorsement of the
government agency that requested for the issuance of the HDO or WLO
47
and the affirmation of the DOJ Secretary even as the HDO or WLO against ORDER This watchlist shall be valid for sixty (60) days unless sooner revoked or
him had become functus officio with its expiration. extended.
On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department
It did not also escape the attention of the Court that the DOJ Secretary of Justice issued an order docketed as Watchlist Order No. 2011-422 The Airport Operation Division and Immigration Regulation Division Chiefs
has authorized himself to permit a person subject of HDO or WLO to travel directing the Bureau of Immigration to include the name GLORIA M. shall implement this Order.
through the issuance of an ADO upon showing of "exceptional reasons" to MACAPAGAL-ARROYO in the Bureau's Watchlist.
grant the same. The grant, however, is entirely dependent on the sole Notify the Computer Section.
discretion of the DOJ Secretary based on his assessment of the grounds It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an
investigation by the Department of Justice in connection with the SO ORDERED.
stated in the application.
following cases: 09 August 2011 (Emphasis ours)
The constitutional violations of DOJ Circular No. 41 are too gross to brush
aside particularly its assumption that the DOJ Secretary's determination Docket No. Title of the Case Offense/s Charged Watchlist Order No. 2011-422 128
of the necessity of the issuance of HDO or WLO can take the place of a law
XVI-INV-10H- Danilo A. Lihaylihay vs. Plunder In re: Issuance of Watchlist
that authorizes the restraint in the right to travel only in the interest of
00251 Gloria Macapagal- Order against MA. GLORIA M.
national security, public safety or public health. The DOJ Secretary has
Arroyo MACAPAGAL-ARROYO
recognized himself as the sole authority in the issuance and cancellation
of HDO or WLO and in the determination of the sufficiency of the grounds XVIX-INV-11D- Francisco I. Chavez vs. Plunder, Malversation AMENDED ORDER
for an ADO. The consequence is that the exercise of the right to travel of 00170 Gloria Macapagal- and/or Illegal use of
persons subject of preliminary investigation or criminal cases in court is Arroyo OWWA Funds, Graft Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an
indiscriminately subjected to the discretion of the DOJ Secretary. and Corruption, investigation by this Department in connection with the following
Violation of The cases: TCAScE
This is precisely the situation that the 1987 Constitution seeks to avoid —
for an executive officer to impose restriction or exercise discretion that Omnibus Election
Docket No. Title of the Case Offense/s Charged
unreasonably impair an individual's right to travel — thus, the addition of Code, Violation of the
the phrase, "as may be provided by law" in Section 6, Article III thereof. Code of Ethical XVI-INV-10H- Danilo A. Lihaylihay Plunder
In Silverio, the Court underscored that this phraseology in the 1987 Standards for Public 00251 versus Gloria
Constitution was a reaction to the ban on international travel imposed Officials, and Macapagal-Arroyo
under the previous regime when there was a Travel Processing Center, Qualified Theft
which issued certificates of eligibility to travel upon application of an XVIX-INV-11D- Francisco I. Chavez Plunder, Malversation
XVI-INV-11F-00238 Francisco I. Chavez vs. Plunder, Malversation 00170 versus Gloria and/or Illegal Use of
interested party. 126 The qualifying phrase is not a mere innocuous
Gloria Macapagal- and/or Illegal use of Macapagal-Arroyo OWWA Funds, Graft
appendage. It secures the individual the absolute and free exercise of his
Arroyo, Jocelyn "Joc- Public Funds, Graft and Corruption,
right to travel at all times unless the more paramount considerations of
Joc" Bolante, Ibarra and Corruption, Violation of the
national security, public safety and public health call for a temporary
Poliquit, et al. Violation of The Omnibus Election
interference, but always under the authority of a law.
Omnibus Election Code, Violation of the
The subject WLOs and the restraint Code, Violation of the Code of Ethical
on the right to travel. Code of Ethical Standards for Public
Standards for Public Officials, and
In the subject WLOs, the illegal restraint on the right to travel was subtly Officials, and Qualified Theft
incorporated in the wordings thereof. For better illustration, the said Qualified Theft
WLOs are hereby reproduced as follows: cDHAES XVI-INV-11F-00238 Francisco I. Chavez Plunder, Malversation
Based on the foregoing and pursuant to Department of Justice Circular No. versus Gloria and/or Illegal Use of
WLO No. ASM-11-237 127 41 (Consolidated Rules and Regulations Governing the Issuance and Macapagal-Arroyo, Public Funds, Graft
(Watchlist) Implementation of Hold Departure Orders, Watchlist Orders, and Allow Jocelyn "Joc-Joc" and Corruption,
Departure Orders) dated 25 May 2010, we order the inclusion of the Violation of the
In re: GLORIA M. MACAPAGAL-ARROYO
name GLORIA M. MACAPAGAL-ARROYO in the Watchlist.
48
 Bolante, Ibarra Omnibus Election Ground for WLO Issuance: Pendency of the case, (D.C.) No. 41 (Consolidated Rules and Regulations Governing the Issuance
Poliquit, et al. Code, Violation of the entitled "DOJ-COMELEC Fact and Implementation of Hold Departure Orders, Watchlist Orders, and
Code of Ethical Finding Committee v. Benjamin Allow Departure Orders) dated May 25, 2010, we find the application
Standards for Public Abalos Sr., et al.," for Electoral meritorious.
Officials, and Sabotage/Omnibus Election Code
docketed as DOJ-COMELEC Case Accordingly, the Commissioner of Immigration, Manila, is hereby ordered
Qualified Theft
No. 001-2011 to INCLUDE in the Bureau of Immigration's Watchlist the names of EFRAIM
Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F. GENUINO, RAFAEL
25, 2010 (Consolidated Rules and Regulations Governing the Issuance and 1. MA. GLORIA M. MACAPAGAL-ARROYO "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA,
Implementation of Hold Departure Orders, Watchlist Orders, and Allow Address: Room MB-2, House of Representatives ATTY. CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO
Departure Orders), the undersigned hereby motu proprio issues a Quezon City SORIANO, JR., AND JOHNNY G. TAN. cTDaEH
Watchlist Order against Ma. Gloria M. Macapagal-Arroyo.
2. JOSE MIGUEL TUASON ARROYO Name: EFRAIM C. GENUINO
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered Address: L.T.A. Bldg. 118 Perea St.
Makati City Nationality: Filipino
to INCLUDE in the Bureau of Immigration's Watchlist the name of Ma.
Gloria M. Macapagal-Arroyo. Last known address: No. 42 Lapu Lapu Street,
xxx xxx xxx
Magallanes Village, Makati City
Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty
Ground for WLO Issuance: Pendency of the case,
(60) days from issuance unless sooner terminated or extended. Ground for HDO Issuance: Malversation, Violation of
entitled "Aquilino Pimentel III v.
Gloria Macapagal-Arroyo, et the Anti-Graft and Corrupt
SO ORDERED.
al.," for Electoral Sabotage Practices Act, Plunder
City of Manila, September 6, 2011. (Emphasis ours) docketed as DOJ-COMELEC Case Details of the Case: Pending before the National
No. 002-2011. Prosecution Service,
Watchlist Order (WLO)
No. 2011-573 129 Accordingly, the Commissioner of Immigration, Manila, is hereby ordered Department of Justice (NPS
to INCLUDE in the Bureau of Immigration's Watchlist, the names of the Docket No. XV-INV-11F-00229)
IN RE: Issuance of WLO against
above-named persons. Pending before the Office of the
BENJAMIN ABALOS, SR., et al.
This Order is valid for a period of sixty (60) days from the date of its Ombudsman
ORDER
issuance unless sooner terminated or otherwise extended. (Case No. CPL-C-11-1297)
Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010
SO ORDERED. Pending before the National
(Consolidated Rules and Regulations Governing the Issuance and
Implementation of Hold Departure Orders, Watchlist Orders, and Allow On the other hand, HDO No. 2011-64 issued against the petitioners in G.R. Prosecution Service,
Departure Orders), after careful evaluation, finds the Application for the No. 197930 pertinently states: Department of Justice
Issuance of WLO against the following meritorious;
Hold Departure Order (HDO) (I.S. No. XVI-INV-11G-00248)
xxx xxx xxx No. 2011-64 130

12. MA. GLORIA M. MACAPAGAL-ARROYO In re: Issuance of HDO against Name: SHERYLL F. GENUINO-SEE
Address: Room MB-2, House of Representatives EFRAIM C. GENUINO, ET AL.
Quezon City Nationality: Filipino
ORDER
xxx xxx xxx Last known address: No. 32-a Paseo Parkview,
After a careful evaluation of the application, including the documents Makati City
attached thereto, for the issuance of Hold Departure Order (HDO) against
the above-named persons filed pursuant to this Department's Circular
49
 Ground for HDO Issuance: Malversation, Violation of
the Anti-Graft and Corrupt
Practices Act, Plunder
Details of the Case: Pending before the National
Prosecution Service,
Department of Justice
(I.S. No. XVI-INV-11G-00248)
Name: ERWIN F. GENUINO
Nationality: Filipino
Last known address: No. 5 J.P. Rizal Extension,
COMEMBO, Makati City
Ground for HDO Issuance: Malversation, Violation of
the Anti-Graft and Corrupt
Practices Act, Plunder
Details of the Case: Pending before the National
Prosecution Service,
Department of Justice (NPS
Docket No. XV-INV-11F-00229)
Pending before the National
Prosecution Service,
Department of Justice
(I.S. No. XVI-INV-11G-00248)
xxx xxx xxx
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five
(5) years unless sooner terminated.
SO ORDERED. (Emphasis ours)
On its face, the language of the foregoing issuances does not contain an
explicit restraint on the right to travel. The issuances seemed to be a mere
directive from to the BI officials to include the named individuals in the
watchlist of the agency. Noticeably, however, all of the WLOs contained a
common reference to DOJ Circular No. 41, where the authority to issue
the same apparently emanates, and from which the restriction on the
right to travel can be traced. Section 5 thereof provides, thus:
Section 5. HDO/WLO Lifting or Cancellation. — In the lifting or
cancellation of the HDO/WLO issued pursuant to this Circular, the
following shall apply:
(a) The HDO may be lifted or cancelled under any of the following
grounds:
1. When the validity period of the HDO as provided for in the preceding
section has already expired;
2. When the accused subject of the HDO has been allowed to leave the
country during the pendency of the case, or has been acquitted of the
charge, or the case in which the warrant/order of arrest was issued has
been dismissed or the warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of
the government wherein the presence of the alien subject of the
HDO/WLO has been dismissed by the court or by appropriate government
agency, or the alien has been discharged as a witness therein, or the alien
has been allowed to leave the country;
(b) The WLO may be lifted or cancelled under any of the following
grounds:
1. When the validity period of the WLO as provided for in the preceding
section has already expired;
2. When the accused subject of the WLO has been allowed by the court
to leave the country during the pendency of the case, or has been
acquitted of the charge; and
3. When the preliminary investigation is terminated, or when the
petition for review, or motion for reconsideration has been denied
and/or dismissed.
xxx xxx xxx
That the subject of a HDO or WLO suffers restriction in the right to travel
is implied in the fact that under Sections 5 (a) (2) and 5 (b) (2), the
concerned individual had to seek permission to leave the country from the
court during the pendency of the case against him. Further, in 5 (b) (3), he
may not leave unless the preliminary investigation of the case in which he
is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that
the subject of a HDO or WLO cannot leave the country unless he obtains
an ADO. The said section reads as follows:
Section 7. Allow Departure Order (ADO). — Any person subject of
HDO/WLO issued pursuant to this Circular who intends, for some
exceptional reasons, to leave the country may, upon application under
oath with the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of
travel, and containing an undertaking to immediately report to the DOJ
upon return; and cSaATC
(b) Authority to travel or travel clearance from the court or appropriate
government office where the case upon which the issued HDO/WLO was
based is pending, or from the investigating prosecutor in charge of the
subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed to
leave the country, the only plausible conclusion that can be made is that
its mere issuance operates as a restraint on the right to travel. To make it
even more difficult, the individual will need to cite an exceptional reason
to justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby
giving the impression that they are one and the same or, at the very least,
complementary such that whatever is not covered in Section 1, 131 which
pertains to the issuance of HDO, can conveniently fall under Section
2, 132 which calls for the issuance of WLO. In any case, there is an
identical provision in DOJ Circular No. 41 which authorizes the Secretary
of Justice to issue a HDO or WLO against anyone, motu proprio, in the
interest of national security, public safety or public health. With this all-
encompassing provision, there is nothing that can prevent the Secretary
of Justice to prevent anyone from leaving the country under the guise of
national security, public safety or public health.
The exceptions to the right to travel
are limited to those stated in Section
6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an
exclusive enumeration of the instances wherein the right to travel may be
validly impaired. 133 It cites that this Court has its own administrative
issuances restricting travel of its employees and that even lower courts
may issue HDO even on grounds outside of what is stated in
theConstitution. 134
The argument fails to persuade.
50
It bears reiterating that the power to issue HDO is inherent to the courts.
The courts may issue a HDO against an accused in a criminal case so that
he may be dealt with in accordance with law. 135 It does not require
legislative conferment or constitutional recognition; it co-exists with the
grant of judicial power. In Defensor-Santiago vs. Vasquez, 136the Court
declared, thus:
Courts possess certain inherent powers which may be said to be implied
from a general grant of jurisdiction, in addition to those expressly
conferred on them. These inherent powers are such powers as are
necessary for the ordinary and efficient exercise of jurisdiction; or
essential to the existence, dignity and functions of the court, as well as to
the due administration of justice; or are directly appropriate, convenient
and suitable to the execution of their granted powers; and include the
power to maintain the court's jurisdiction and render it effective in behalf
of the litigants. 137
The inherent powers of the courts are essential in upholding its integrity
and largely beneficial in keeping the people's faith in the institution by
ensuring that it has the power and the means to enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court,
in Leave Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII of
the 1987 Constitution provides that the Supreme Court shall have
administrative supervision over all courts and the personnel thereof. This
provision empowers the Court to oversee all matters relating to the
effective supervision and management of all courts and personnel under
it. Recognizing this mandate, Memorandum Circular No. 26 of the Office
of the President, dated July 31, 1986, considers the Supreme Court
exempt and with authority to promulgate its own rules and regulations on
foreign travels. Thus, the Court came out with OCA Circular No. 49-
2003 (B).
Where a person joins the Judiciary or the government in general, he or
she swears to faithfully adhere to, and abide with, the law and the
corresponding office rules and regulations. These rules and regulations, to
which one submits himself or herself, have been issued to guide the
government officers and employees in the efficient performance of their
obligations. When one becomes a public servant, he or she assumes
certain duties with their concomitant responsibilities and gives up some
rights like the absolute right to travel so that public service would not be
prejudiced. 138
It is therefore by virtue of its administrative supervision over all courts and
personnel that this Court came out with OCA Circular No. 49-2003, which
provided for the guidelines that must be observed by employees of the
judiciary seeking to travel abroad. Specifically, they are required to secure
a leave of absence for the purpose of foreign travel from this Court
through the Chief Justice and the Chairmen of the Divisions, or from the
Office of the Court Administrator, as the case may be. This is "to ensure
management of court dockets and to avoid disruption in the
administration of justice." 139
OCA Circular No. 49-2003 is therefore not a restriction, but more properly,
a regulation of the employee's leave for purpose of foreign travel which is
necessary for the orderly administration of justice. To "restrict" is to
restrain or prohibit a person from doing something; to "regulate" is to
govern or direct according to rule. 140 This regulation comes as a
necessary consequence of the individual's employment in the judiciary, as
part and parcel of his contract in joining the institution. For, if the
members of the judiciary are at liberty to go on leave any time, the
dispensation of justice will be seriously hampered. Short of key personnel,
the courts cannot properly function in the midst of the intricacies in the
administration of justice. At any rate, the concerned employee is not
prevented from pursuing his travel plans without complying with OCA
Circular No. 49-2003but he must be ready to suffer the consequences of
his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service
Commission with respect to the requirement for leave application of
employees in the government service seeking to travel abroad. The
Omnibus Rules Implementing Book V of E.O. No. 292 states the leave
privileges and availment guidelines for all government employees, except
those who are covered by special laws. The filing of application for leave
is required for purposes of orderly personnel administration. In pursuing
foreign travel plans, a government employee must secure an approved
leave of absence from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended
by Memorandum Order (MO) No. 26 dated July 31, 1986, provided the
procedure in the disposition of requests of government officials and
employees for authority to travel abroad. The provisions of this issuance
were later clarified in the Memorandum Circular No. 18 issued on October
27, 1992. Thereafter, on September 1, 2005, E.O. No. 459 was issued,
streamlining the procedure in the disposition of requests of government
officials and employees for authority to travel abroad. Section 2 thereof
states: cHDAIS
Section 2. Subject to Section 5 hereof, all other government officials and
employees seeking authority to travel abroad shall henceforth seek
approval from their respective heads of agencies, regardless of the
length of their travel and the number of delegates concerned. For the
purpose of this paragraph, heads of agencies refer to the Department
Secretaries or their equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was
deemed necessary "to promote efficiency and economy in the
government service." 141 The objective was clearly administrative
efficiency so that government employees will continue to render public
services unless they are given approval to take a leave of absence in which
case they can freely exercise their right to travel. It should never be
interpreted as an exception to the right to travel since the government
employee during his approved leave of absence can travel wherever he
wants, locally or abroad. This is no different from the leave application
requirements for employees in private companies.
The point is that the DOJ may not justify its imposition of restriction on
the right to travel of the subjects of DOJ Circular No. 41 by resorting to an
analogy. Contrary to its claim, it does not have inherent power to issue
HDO, unlike the courts, or to restrict the right to travel in anyway. It is
limited to the powers expressly granted to it by law and may not extend
the same on its own accord or by any skewed interpretation of its
authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to issue
the questioned circular but the solution does not lie in taking
constitutional shortcuts. Remember that the Constitution "is the
fundamental and paramount law of the nation to which all other laws
must conform and in accordance with which all private rights are
determined and all public authority administered." 142 Any law or
issuance, therefore, must not contradict the language of the fundamental
law of the land; otherwise, it shall be struck down for being
unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that
have a negative impact on constitutionally-protected rights without the
authority of a valid law. Even with the predicament of preventing the
proliferation of crimes and evasion of criminal responsibility, it may not
overstep constitutional boundaries and skirt the prescribed legal
processes.
51
That the subjects of DOJ Circular No. 41 are individuals who may have
committed a wrong against the state does not warrant the intrusion in the
enjoyment of their basic rights. They are nonetheless innocent individuals
and suspicions on their guilt do not confer theirs lesser privileges to enjoy.
As emphatically pronounced in Secretary of National Defense vs. Manalo,
et al., 143 "the constitution is an overarching sky that covers all in its
protection. It affords protection to citizens without distinction. Even the
most despicable person deserves the same respect in the enjoyment of
his rights as the upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma of the
DOJ. The resolution of the issues in the instant petitions was partly aimed
at encouraging the legislature to do its part and enact the necessary law
so that the DOJ may be able to pursue its prosecutorial duties without
trampling on constitutionally-protected rights. Without a valid legislation,
the DOJ's actions will perpetually be met with legal hurdles to the
detriment of the due administration of justice. The challenge therefore is
for the legislature to address this problem in the form of a legislation that
will identify permissible intrusions in the right to travel. Unless this is
done, the government will continuously be confronted with questions on
the legality of their actions to the detriment of the implementation of
government processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising more
vigilance and efficiency in the performance of its duties. This can be
accomplished by expediency in the assessment of complaints filed before
its office and in the prompt filing of information in court should there be
an affirmative finding of probable cause so that it may legally request for
the issuance of HDO and hold the accused for trial. Clearly, the solution
lies not in resorting to constitutional shortcuts but in an efficient and
effective performance of its prosecutorial duties.
The Court understands the dilemma of the government on the effect of
the declaration of unconstitutionality of DOJ Circular No. 41, considering
the real possibility that it may be utilized by suspected criminals,
especially the affluent ones, to take the opportunity to immediately leave
the country. While this is a legitimate concern, it bears stressing that the
government is not completely powerless or incapable of preventing their
departure or having them answer charges that may be subsequently filed
against them. In his Separate Concurring Opinion, Mr. Justice Carpio,
pointed out that Republic Act No. (R.A.) 8239, otherwise known as
the Philippine Passport Act of 1996, explicitly grants the Secretary of
Foreign Affairs or any of the authorized consular officers the authority to
issue verify, restrict, cancel or refuse the issuance of a passport to a citizen
under the circumstances mentioned in Section 4 144 thereof. Mr. Justice
Tijam, on the other hand, mentioned Memorandum Circular No. 036, Sereno, * C.J., is on indefinite leave.
which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in
Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti- Carpio, J., see concurring opinion.
Trafficking in Persons Acts of 2012, which authorizes the BI to hold the Velasco, Jr., J., see separate concurring opinion.
departure of suspected traffickers or trafficked individuals. He also noted
that the Commissioner of BI has the authority to issue a HDO against a Leonen, J., see separate opinion.
foreigner subject of deportation proceedings in order to ensure his
appearance therein. Similarly, the proposal of Mr. Justice Velasco for the Caguioa, ** J., took no part.
adoption of new set of rules which will allow the issuance of a
precautionary warrant of arrest offers a promising solution to this
quandary. This, the Court can do in recognition of the fact that laws and
rules of procedure should evolve as the present circumstances require.
Contempt charge against respondent
De Lima
It is well to remember that on November 18, 2011, a Resolution 145 was
issued requiring De Lima to show cause why she should not be
disciplinarily dealt or be held in contempt for failure to comply with the
TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full
discussion that it rightfully deserves, the Court finds it more fitting to
address the same in a separate proceeding. It is in the interest of fairness
that there be a complete and exhaustive discussion on the matter since it
entails the imposition of penalty that bears upon the fitness of the
respondent as a member of the legal profession. The Court, therefore,
finds it proper to deliberate and resolve the charge of contempt
against De Lima in a separate proceeding that could accommodate a full
opportunity for her to present her case and provide a better occasion for
the Court to deliberate on her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice
Circular No. 41 is hereby declared UNCONSTITUTIONAL. All issuances
which were released pursuant thereto are hereby declared NULL and
VOID.
The Cleric of Court is hereby DIRECTED to REDOCKET the Resolution of
the Court dated November 28, 2011, which required respondent
Leila De Lima to show cause why she should not be cited in contempt, as
a separate petition. ISHCcT
SO ORDERED.
Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe,
Jardeleza, Martires, Tijam and Gesmundo, JJ., concur.
52
RE: Speedy Trial Further, the records of this case would show that the accused is not
entirely without blame as to why this case has been pending. Aside from
SECOND DIVISION that, the accused filed a Motion to Quash as well as accused's Motion for
[OCA IPI No. 17-4663-RTJ. March 7, 2018.] Reconsideration thereto resulting in the conduct of the arraignment only
in the last year of September.
ATTY. BERTENI C. CAUSING and PERCIVAL CARAG
MABASA, complainants, vs. PRESIDING JUDGE JOSE LORENZO The prosecution should be given its day in court. To deny the Motion For
R. DELA ROSA, Regional Trial Court, Branch 4, Manila, respondent. Reconsideration is a (sic) deny to prosecute on the part of the
prosecution. 5
DECISION
Complainants questioned respondent Judge Dela Rosa's November 23,
CAGUIOA, J p: 2015 Resolution granting the prosecution's Motion for Reconsideration
because, according to them, it was elementary for respondent
Before the Court is the Complaint 1 dated January 6, 2017 filed before the Judge Dela Rosa to know that the prior dismissal of a criminal case due to
Office of the Court Administrator (OCA) by Atty. Berteni C. Causing (Atty. a violation of the accused's right to speedy trial is equivalent to a dismissal
Causing) and Percival Carag Mabasa a.k.a. Percy Lapid (Mabasa) against on the merits of the case and, as such, granting the prosecution's Motion
respondent Judge Jose Lorenzo R. Dela Rosa (respondent for Reconsideration was tantamount to a violation of the constitutional
Judge Dela Rosa), Presiding Judge, Regional Trial Court (RTC), Branch (Br.) right against double jeopardy. 6 Complainants averred further that it was
4, Manila. IAETDc unacceptable, given respondent Judge Dela Rosa's position and the
presumption of his knowledge of the law, for him to have disregarded a
Antecedents
rule as elementary as the constitutional right of an accused against double
Atty. Causing and his client, Mabasa (Complainants), charged respondent jeopardy. 7
Judge Dela Rosa with gross ignorance of the law, gross misconduct and
Complainants also criticized respondent Judge Dela Rosa's act of referring
gross incompetence for reversing 2 the dismissal of Criminal Case Nos. 09-
to the Integrated Bar of the Philippines (IBP) Atty. Causing's two (2)
268685-86 entitled People v. Eleazar, et al. (Libel Cases), wherein Mabasa
separate posts on his Facebook and blogspot accounts about the subject
was one of the accused.
criminal cases. They reasoned that respondent Judge Dela Rosa should
Complainants alleged that the Libel Cases were dismissed by former have first required Atty. Causing to show cause why he should not be cited
Acting Presiding Judge Gamor B. Disalo (Judge Disalo) in an Order 3 dated in contempt for publicizing and taking his posts to social media. Atty.
April 13, 2015 on the ground that the right of the accused to speedy trial Causing emphasized that the posts were presented using decent words
had been violated. The prosecution filed a Motion for Reconsideration of and thus, it was incorrect for respondent Judge Dela Rosa to refer his
the April 13, 2015 Order before the RTC Br. 4 Manila, now presided by actions to a disciplinary body such as the IBP. Atty. Causing further
respondent Judge Dela Rosa. asserted that he did not violate the sub judice 8 rule because this rule
cannot be used to preserve the unfairness and errors of respondent
Respondent Judge Dela Rosa granted the prosecution's Motion for
Judge Dela Rosa. 9
Reconsideration in the assailed Resolution 4 dated November 23, 2015
(November 23, 2015 Resolution), the pertinent portions of which read: In a 1st Indorsement 10 dated January 16, 2017, the OCA directed
respondent Judge Dela Rosa to file his Comment within ten (10) days from
xxx xxx xxx receipt thereof. 11
In opposition thereto, counsel for the accused cites double jeopardy. In his Comment 12 dated March 13, 2017 (Comment), respondent
However, several settings of this Court showed that the resetting was on Judge Dela Rosa averred that he had already reversed the November 23,
motion of counsel for the accused and hence with the consent of the 2015 Resolution as early as June 20, 2016 — or way before the filing of
accused. Further, the questioned Order dated April 13, 2015 has not yet
the Complaint on January 6, 2017 — when he issued a Resolution 13 of
attained finality, so double jeopardy is not yet attached.
even date, which states:
x x x While the records of the cases will show delay also attributable to
the defense and that this court was acting in the spirit of fairness, the April
13, 2015 Order of Hon. Disalo should be upheld to the prejudice of
fairness. Being caught between a rock and a hard place, liberality is
afforded to the accused. x x x
xxx xxx xxx
As the records would show that the Hon. Judge Disalo dismissed these
cases on the right of speedy trial, double jeopardy attaches. Hence, this
Court's Resolution dated November 23, 2015 is recalled and set aside. The
dismissal dated April 13, 2015 as dictated in the Order of Hon. Judge Disalo
is reinstated.
While the right of due process of the State may have been circumvented,
the interest of the private complainants with regard to the civil aspect of
the cases is protected as the dismissal of the subject criminal cases is
without prejudice to the pursuit of civil indemnity. 14
Respondent Judge Dela Rosa explained in his Comment that he had issued
the November 23, 2015 Resolution because, after studying the records,
he discovered that Complainants caused much of the delay in the
proceedings. 15
Respondent Judge Dela Rosa then enumerated in his Comment the
instances wherein Complainants caused the delay in the proceedings in
the Libel Cases:
1. While the warrant of arrest for Mabasa was issued on May 28, 2009, it
was only one (1) year and four (4) months after or on September 28, 2010
that Mabasa was detained; 16 DcHSEa
2. Mabasa filed a Motion to Dismiss on November 30, 2010; 17
3. The arraignment and pre-trial of the cases were reset after then
Presiding Judge Marcelino L. Sayo, Jr. (Judge Sayo) issued an Order dated
April 6, 2011, which indicated that Mabasa, through counsel, moved that
the scheduled arraignment and pre-trial be reset in order "for the parties
to settle the civil aspect of these cases"; 18
4. The counsel of Mabasa filed an Urgent Motion for Deferment dated
June 9, 2011 requesting again for the re-scheduling of the arraignment
and pre-trial; 19
5. The pre-trial of the case was again rescheduled in an Order dated
August 24, 2011 by the lower court due to the absence of Mabasa's co-
accused, Johnson L. Eleazar; 20
53
6. Mabasa filed a Motion to Quash dated October 11, 2011, citing the
court's lack of jurisdiction; 21
7. The lower court, in an Order dated June 27, 2012, rescheduled again
the arraignment and pre-trial, citing the absence of the private
prosecutor, Mabasa and his counsel; 22
8. Judge Sayo thereafter issued an Order dated November 28, 2012,
directing the issuance of warrants of arrest against Mabasa and co-
accused Gloria Galuno due to their continued non-appearance in court; 23
9. In an Order dated December 12, 2012, Judge Sayo lifted the warrants
of arrest against Mabasa and his other co-accused in the Libel Cases after
their counsel admitted that their non-appearance in the previous hearing
was due to the fault of their counsel's law office; 24
10. The hearing of the case on June 30, 2014 was rescheduled after
Mabasa moved for the resetting of the case due to the absence of his
counsel; 25
11. In an Order by Judge Disalo dated August 11, 2014, counsel for Mabasa
was absent again. Mabasa was finally arraigned after the court appointed
one of the lawyers from the Public Attorney's Office as counsel de
oficio for Mabasa; 26
12. The Commissioner's Report dated September 23, 2014 stated that the
preliminary conference failed to push through due to the absence of
Mabasa and his counsel; 27 and
13. The initial date of the presentation of the prosecution evidence was
set on April 13, 2015 by the branch clerk of court. Notably, the cases
against Mabasa would be dismissed on the same day. 28
Respondent Judge Dela Rosa emphasized that the day the Libel Cases
were dismissed, i.e., on April 13, 2015, was actually the date set for the
first actual trial of the cases. He stressed that the delay of almost five (5)
years in the subject cases was attributable more to Mabasa than anyone
else. 29
Respondent Judge Dela Rosa claimed that the November 23, 2015
Resolution was issued in good faith and after evaluation of the evidence
submitted by each party. He denied that the same was motivated by bad
faith, ill will, fraud, dishonesty, corruption or caprice. In fact, Respondent
Judge issued this as a matter of fairness — that is, to give the private
complainants in the Libel Cases an opportunity to pursue against Mabasa
and his co-accused the civil aspect of the Libel Cases. 30
Finally, respondent Judge Dela Rosa stressed how the filing of this
administrative complaint against him — on January 6, 2017, or after he
had already reversed the November 23, 2015 Resolution through his June
20, 2016 Resolution — is pure harassment. 31
OCA Report and Recommendation
In a Report and Recommendation 32 dated June 28, 2017, the OCA
recommended that the administrative complaint against
Judge Dela Rosa be dismissed for lack of merit.
After considering the allegations in the Complaint and respondent
Judge Dela Rosa's Comment, the OCA found that in the absence of any
proof that respondent Judge DelaRosa was ill-motivated in issuing the
November 23, 2015 Order and that he had, in fact, issued his June 20,
2016 Resolution reversing himself, the charge of gross ignorance of the
law should be dismissed.
The OCA ratiocinated as follows:
The main issue in this administrative complaint is rooted in respondent
Judge's issuance of the Order dated 23 November 201[5], reversing the
previous one dismissing the criminal cases on the ground of violation of
the right of the accused to speedy trial. Respondent Judge has already
admitted that he made a mistake in issuing the said order as this would
have constituted a violation of the right of the accused against double
jeopardy. To rectify his error, he granted the motion for reconsideration
filed by the accused. SCaITA
Although not without exceptions, it is settled that the function of a motion
for reconsideration is to point out to the court the error that it may have
committed and to give it a chance to correct itself. In "Republic of the
Philippines v. Abdulwahab A. Bayao, et al.," 33 the Court explains the
general rule that the purpose of a motion for reconsideration is to grant
an opportunity for the court to rectify any actual or perceived error
attributed to it by re-examination of the legal and factual circumstances
of the case. The wisdom of this rule is to expedite the resolution of the
issues of the case at the level of the trial court so it can take a harder look
at the records to come up with a more informed decision on the
case. 34 (Emphasis supplied)
The OCA found that the records of the case show that respondent
Judge Dela Rosa admitted that he had erred in issuing the November 23,
2015 Order, but that he had rectified such mistake. 35 The OCA held that
this is precisely why our judicial system has remedies for both the party-
litigants and the court to avail of if need be. 36 The OCA asserted that it
would be absurd to still hold respondent Judge Dela Rosa liable despite
his rectification through his June 20, 2016 Resolution. 37
As to the referral by respondent Judge Dela Rosa to the IBP of Atty.
Causing's act of posting matters pertaining to the pending criminal case
on the internet, the OCA disagreed with Atty. Causing's argument that
respondent Judge Dela Rosa should have first required him to show cause
for having done so. 38 The OCA explained that respondent
Judge Dela Rosa cannot just exercise his contempt powers on a whim, if
not haphazardly, if he believes that he has other remedies to resort to,
just like in this case. 39
The Court's Ruling
In view of the foregoing, the Court hereby adopts and approves the
findings of facts and conclusions of law in the above-mentioned OCA
Report and Recommendation.
Gross ignorance of the law is the disregard of basic rules and settled
jurisprudence. 40 A judge may also be administratively liable if shown to
have been motivated by bad faith, fraud, dishonesty or corruption in
ignoring, contradicting or failing to apply settled law and
jurisprudence. 41
The Court however has also ruled that "not every error or mistake of a
judge in the performance of his official duties renders him liable." 42
For liability to attach for ignorance of the law, the assailed order, decision
or actuation of the judge in the performance of official duties must not
only be found erroneous but, most importantly, it must also be
established that he was moved by bad faith, dishonesty, hatred, or some
other like motive. As a matter of policy, in the absence of fraud,
dishonesty or corruption, the acts of a judge in his judicial capacity are not
subject to disciplinary action even though such acts are erroneous. 43
The Court agrees with the OCA that it would be absurd to hold respondent
Judge Dela Rosa liable for his November 23, 2015 Order when he had
himself rectified this in his subsequent June 20, 2016 Order. To rule
otherwise would be to render judicial office untenable, for no one called
upon to try the facts or interpret the law in the process of administering
justice can be infallible in his judgment. 44 To hold otherwise "would be
nothing short of harassing judges to take the fantastic and impossible oath
of rendering infallible judgments." 45
Furthermore, nothing in the records of the case suggests that respondent
Judge Dela Rosa was motivated by bad faith, fraud, corruption,
54
dishonesty or egregious error in rendering his decision. Other than their
bare assertions, Complainants failed to substantiate their allegations with
competent proof. Bad faith cannot be presumed 46 and this Court cannot
conclude bad faith intervened when none was actually proven. 47

The Court likewise finds no merit in Complainants' allegation that

respondent Judge Dela Rosa should have first required Atty. Causing to
show cause for his act of posting matters pertaining to the pending
criminal case on the internet. The Court agrees with the OCA that
respondent Judge Dela Rosa's act of referring the matter to the IBP, an
independent tribunal who exercises disciplinary powers over lawyers, was
a prudent and proper action to take for a trial court judge. The Court has
explained, in the case of Lorenzo Shipping Corporation v. Distribution
Management Association of the Philippines, 48 that judges' power to
punish contempt must be exercised judiciously and sparingly, not for
retaliation or vindictiveness, viz.:

x x x [T]he power to punish for contempt of court is exercised on the

preservative and not on the vindictive principle, and only occasionally
should a court invoke its inherent power in order to retain that respect
without which the administration of justice must falter or fail. As judges[,]
we ought to exercise our power to punish contempt judiciously and
sparingly, with utmost restraint, and with the end in view of utilizing the
power for the correction and preservation of the dignity of the Court, not
for retaliation or vindictiveness. 49

In fine, the administrative charge against respondent

Judge Dela Rosa should be, as it is hereby, dismissed.

WHEREFORE, the instant administrative complaint against respondent

Presiding Judge Jose Lorenzo R. Dela Rosa, Regional Trial Court, Branch 4,
Manila is hereby DISMISSED for lack of merit.aTHCSE

SO ORDERED.

Carpio, * Peralta, Perlas-Bernabe and Reyes, Jr., JJ., concur.

||| (Causing v. Dela Rosa, OCA IPI No. 17-4663-RTJ, [March 7, 2018])

55
RE: Inordinate delay — how to determine if the case can already be
dismissed on the ground of inordinate delay
EN BANC
[G.R. Nos. 206438 and 206458. July 31, 2018.]
CESAR MATAS CAGANG, petitioner, vs. SANDIGANBAYAN, FIFTH
DIVISION, QUEZON CITY; OFFICE OF THE OMBUDSMAN; and PEOPLE OF
THE PHILIPPINES, respondents.
[G.R. Nos. 210141-42. July 31, 2018.]
CESAR MATAS CAGANG, petitioner, vs. SANDIGANBAYAN, FIFTH
DIVISION, QUEZON CITY; OFFICE OF THE OMBUDSMAN; and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
LEONEN, J p:
Every accused has the rights to due process and to speedy disposition of
cases. Inordinate delay in the resolution and termination of a preliminary
investigation will result in the dismissal of the case against the accused.
Delay, however, is not determined through mere mathematical reckoning
but through the examination of the facts and circumstances surrounding
each case. Courts should appraise a reasonable period from the point of
view of how much time a competent and independent public officer
would need in relation to the complexity of a given case. Nonetheless, the
accused must invoke his or her constitutional rights in a timely manner.
The failure to do so could be considered by the courts as a waiver of
right. aScITE
G.R. Nos. 206438 and 206458 are Petitions for Certiorari with an urgent
prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction 1assailing the Resolutions dated September 12,
2012 2 and January 15, 2013 3 of the Sandiganbayan. The assailed
Resolutions denied Cesar Matas Cagang's (Cagang) Motion to
Quash/Dismiss with Prayer to Void and Set Aside Order of Arrest in
Criminal Case Nos. SB-11-CRM-0456 and SB-11-CRM-0457.
G.R. Nos. 210141-42, on the other hand, refer to a Petition
for Certiorari with an urgent prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction 4 assailing the June
18, 2013 Order 5 and September 10, 2013 Resolution 6 of
the Sandiganbayan. The assailed Resolutions denied Cagang's Motion to
Quash Order of Arrest in Criminal Case Nos. SB-11-CRM-0456 and SB-11-
CRM-0457.
Both Petitions question the Sandiganbayan's denial to quash the
Informations and Order of Arrest against Cagang despite the Office of the
Ombudsman's alleged inordinate delay in the termination of the
preliminary investigation.
On February 10, 2003, the Office of the Ombudsman received an
anonymous complaint alleging that Amelia May Constantino, Mary Ann
Gadian, and Joy Tangan of the Vice Governor's Office, Sarangani Province
committed graft and corruption by diverting public funds given as grants
or aid using barangay officials and cooperatives as "dummies." The
complaint was docketed as CPL-M-03-0163 and referred to the
Commission on Audit for audit investigation. A news report of Sun Star
Davao dated August 7, 2003 entitled "P61M from Sarangani coffers
unaccounted" was also docketed as CPL-M-03-0729 for the conduct of a
fact-finding investigation. 7
On December 31, 2002, the Commission on Audit submitted its audit
report finding that the officials and employees of the Provincial
Government of Sarangani appear to have embezzled millions in public
funds by sourcing out the funds from grants, aid, and the Countrywide
Development Fund of Representative Erwin Chiongbian using dummy
cooperatives and people's organizations. 8 In particular, the Commission
on Audit found that:
(1) There were releases of financial assistance intended for non-
governmental organizations/people's organizations and local government
units that were fraudulently and illegally made through inexistent local
development projects, resulting in a loss of P16,106,613.00;
(2) Financial assistance was granted to cooperatives whose officials and
members were government personnel or relatives of officials of
Sarangani, which resulted in the wastage and misuse of government funds
amounting to P2,456,481.00;
(3) There were fraudulent encashment and payment of checks, and
frequent travels of the employees of the Vice Governor's Office, which
resulted in the incurrence by the province of unnecessary fuel and oil
expense amounting to P83,212.34; and
(4) Inexistent Sagiptaniman projects were set up for farmers affected by
calamities, which resulted in wastage and misuse of government funds
amounting to P4,000,000.00. 9
On September 30, 2003, the Office of the Ombudsman issued a Joint
Order terminating Case Nos. CPL-M-03-0163 and CPL-M-03-0729. It
concurred with the findings of the Commission on Audit and
recommended that a criminal case for Malversation of Public Funds
through Falsification of Public Documents and Violation of Section 3 (e)
of Republic Act No. 3019 be filed against the public officers named by the
Commission on Audit in its Summary of Persons that Could be Held Liable
on the Irregularities. The list involved 180 accused. 10 The case was
docketed as OMB-M-C-0487-J.
After considering the number of accused involved, its limited resources,
and the volumes of case records, the Office of the Ombudsman first had
to identify those accused who appeared to be the most responsible, with
the intention to later on file separate cases for the others. 11
In a Joint Order dated October 29, 2003, the accused were directed to file
their counter-affidavits and submit controverting evidence. The
complainants were also given time to file their replies to the counter-
affidavits. There was delay in the release of the order since the
reproduction of the voluminous case record to be furnished to the parties
"was subjected to bidding and request of funds from the Central
Office." 12 Only five (5) sets of reproductions were released on November
20, 2003 while the rest were released only on January 15,
2004. 13 HEITAD
All impleaded elective officials and some of the impleaded appointive
officials filed a Petition for Prohibition, Mandamus, Injunction with Writ
of Preliminary Injunction and Temporary Restraining Order with Branch
28, Regional Trial Court of Alabel, Sarangani. The Regional Trial Court
issued a Temporary Restraining Order enjoining the Office of the
Ombudsman from enforcing its October 29, 2003 Joint Order. 14
In an Order dated December 19, 2003, the Regional Trial Court dismissed
the Petition on the ground that the officials had filed another similar
Petition with this Court, which this Court had dismissed. 15 Thus, some of
the accused filed their counter-affidavits. 16
After what the Office of the Ombudsman referred to as "a considerable
period of time," it issued another Order directing the accused who had
not yet filed their counter-affidavits to file them within seven (7) days or
they will be deemed to have waived their right to present evidence on
their behalf. 17
In a 293-page Resolution 18 dated August 11, 2004 in OMB-M-C-0487-J,
the Ombudsman found probable cause to charge Governor Miguel D.
Escobar, Vice Governor Felipe Constantino, Board Members, and several
56
employees of the Office of the Vice Governor of Sarangani and the Office
of the Sangguniang Panlalawigan with Malversation through Falsification
of Public Documents and Violation of Section 3 (e) of Republic Act No.
3019. 19 Then Tanodbayan Simeon V. Marcelo (Tanodbayan Marcelo)
approved the Resolution, noting that it was modified by his Supplemental
Order dated October 18, 2004. 20
In the Supplemental Order dated October 18, 2004, Tanodbayan Marcelo
ordered the conduct of further fact-finding investigations on some of the
other accused in the case. Thus, a preliminary investigation docketed as
OMB-M-C-0480-K was conducted on accused Hadji Moner Mangalen
(Mangalen) and Umbra Macagcalat (Macagcalat). 21
In the meantime, the Office of the Ombudsman filed an Information dated
July 12, 2005, charging Miguel Draculan Escobar (Escobar), Margie
Purisima Rudes (Rudes), Perla Cabilin Maglinte (Maglinte), Maria Deposo
Camanay (Camanay), and Cagang of Malversation of Public Funds thru
Falsification of Public Documents. 22 The Information read:
That on July 17, 2002 or prior subsequent thereto in Sarangani,
Philippines, and within the jurisdiction of this Honorable Court, accused
Miguel Draculan Escobar, being the Governor of the Province of
Sarangani, Margie Purisima Rudes, Board Member, Perla Cabilin Maglinte,
Provincial Administrator, Maria Deposo Carnanay, Provincial Accountant,
and Cesar Matas Cagang, Provincial Treasurer, and all high-ranking and
accountable public officials of the Provincial Government of Sarangani by
reason of their duties, conspiring and confederating with one another,
while committing the offense in relation to office, taking advantage of
their respective positions, did then and there willfully, unlawfully and
feloniously take, convert and misappropriate the amount of THREE
HUNDRED SEVENTY[-]FIVE THOUSAND PESOS (P375,000.00), Philippine
Currency, in public funds under their custody, and for which they are
accountable, by falsifying or causing to be falsified Disbursement Voucher
No. 101-2002-7-10376 and its supporting documents, making it appear
that financial assistance has been sought by Amon Lacungam, the alleged
President of Kalalong Fishermen's Group of Brgy. Kalaong, Maitum,
Sarangani, when in truth and in fact, the accused knew fully well that no
financial assistance had been requested by Amon Lacungan and his
association, nor did said Amon Lacungan and his association receive the
aforementioned amount, thereby facilitating the release of the above-
mentioned public funds in the amount of THREE HUNDRED
SEVENTY[-]FIVE THOUSAND PESOS (P375,000.00) through the
encashment by the accused of Development Bank of the Philippines (DBP)
Check No. 11521401 dated July 17, 2002, which amount they
subsequently misappropriated to their personal use and benefit, and
despite demand, said accused failed to return the said amount to the
damage and prejudice of the government and the public interest in the
aforesaid sum.
CONTRARY TO LAW. 23
The Sandiganbayan docketed the case as Crim. Case No. 28331. Escobar,
Maglinte, and Cagang were arraigned on December 6, 2005 where they
pleaded not guilty. Rudes and Camanay remained at large. 24
On June 17, 2010, the Sandiganbayan rendered a Decision 25 in Crim.
Case No. 28331 acquitting Escobar, Maglinte, and Cagang for insufficiency
of evidence. Maglinte, however, was ordered to return P100,000.00 with
legal interest to the Province of Sarangani. The cases against Rudes and
Camanay were archived until the Sandiganbayan could acquire
jurisdiction over their persons. 26 ATICcS
In a Memorandum 27 dated August 8, 2011 addressed to Ombudsman
Conchita Carpio Morales (Ombudsman Carpio Morales), Assistant Special
Prosecutor III Pilarita T. Lapitan reported that on April 12, 2005, a
Resolution 28 was issued in OMB-M-C-0480-K finding probable cause to
charge Mangalen and Macagcalat with Malversation of Public Funds
through Falsification and Violation of Section 3 (e) of Republic Act No.
3019. 29 Thus, it prayed for the approval of the attached Informations:
It should be noted that in a Memorandum dated 10 December 2004 and
relative to OMB-M-C-03-0487-J from which OMB-M-C-04-0480-K
originated, Assistant Special Prosecutor Maria Janina Hidalgo
recommended to Ombudsman Marcelo that the status of state witness be
conferred upon Gadian. This recommendation was approved by
Ombudsman Marcelo on 20 December 2004. Hence, as may be noted[,]
Gadian was no longer included as respondent and accused in the
Resolution dated 12 April 2005 and the attached information.
Related cases that originated from OMB-M-C-03-0487-J for which no
further preliminary investigation is necessary were filed before the courts.
One of these cases is now docketed as Criminal Case No. 28293 and
pending before the Sandiganbayan, First Division. It is noteworthy that in
its Order dated 14 November 2006 the Sandiganbayan, First Division
granted the Motion to Dismiss of the counsel of Felipe Constantino after
having submitted a duly certified true copy of his client's Death Certificate
issued by the National Statistics Office. Considering the fact therefore,
there is a necessity to drop Constantino as accused in this case and
accordingly, revised the attached Information.
An Information for Malversation through Falsification of Public
Documents is also submitted for your Honor's approval considering that
no such Information is attached to the records of this case.
VIEWED IN THE FOREGOING LIGHT, it is respectfully recommended that,
in view of his death, Felipe Constantino no longer be considered as
accused in this case and that the attached Informations be approved. 30
Ombudsman Carpio Morales approved the recommendation on October
20, 2011. 31 Thus, on November 17, 2011, Informations 32 for Violation
of Section 3 (e) of Republic Act No. 3019 and Malversation of Public Funds
through Falsification of Public Documents were filed against Cagang,
Camanay, Amelia Carmela Constantino Zoleta (Zoleta), Macagcalat, and
Mangalen. The Informations read:
[For Violation of Section 3(e), Republic Act No. 3019]
That on 20 September 2002, or sometime prior or subsequent thereto, in
Sarangani, Philippines, and within the jurisdiction of this Honorable Court,
accused Provincial Treasurer CESAR MATAS CAGANG, Provincial
Accountant MARIA DEPOSO CAMANAY, and Executive Assistant to Vice
Governor Felipe Katu Constantino, AMELIA CARMELA CONSTANTINO
ZOLETA, and then Vice-Governor and now deceased Felipe Katu
Constantino, all of the Provincial Government of Sarangani, committing
the offense in relation to the performance of their duties and functions,
taking advantage of their respective official positions, through manifest
partiality, evident bad faith or gross inexcusable negligence, conspiring
and confederating with Barangay Captain UMBRA ADAM MACAGCALAT
and HADJI MONER MANGALEN, the alleged President and Treasurer,
respectively of Kamanga Muslim-Christian Fishermen's Cooperative
("Cooperative"), did then and there willfully, unlawfully and feloniously
cause the disbursement of the amount of Three Hundred and Fifty
Thousand Pesos (P350,000.00) under SARO No. D-98000987 through
Development Bank of the Philippines Check No. 282398 dated 20
September 2002 and with HADJI MONER MANGELEN as payee thereof, by
falsifying Disbursement Voucher No. 401-200209-148 dated 20
September 2002 and its supporting documents to make it appear that
financial assistance was requested and given to the Cooperative, when in
truth and in fact, neither was there a request for financial assistance
received by the said Cooperative after the check was encashed, as herein
accused, conspiring and confederating with each other, did then and
there malverse, embezzle, misappropriate and convert to their own
personal use and benefit the said amount of P350,000.00 thereby causing
undue injury to the government in the aforesaid amount.
57
CONTRARY TO LAW.
[For Malversation of Public Funds thru Falsification of Public Documents]
That on 20 September 2002, or sometime prior or subsequent thereto, in
Sarangani, Philippines, and within the jurisdiction of this Honorable Court,
accused Provincial Treasurer CESAR MATAS CAGANG, and now deceased
Felipe Katu Constantino, being then the Provincial Treasurer and Vice-
Governor respectively, of the Province of Sarangani who, by reason of
their public positions, are accountable for and has control of public funds
entrusted and received by them during their incumbency as Provincial
Treasurer and Vice-Governor respectively, of said province, with accused
Provincial Accountant MARIA DEPOSO CAMANAY, and Executive Assistant
to Vice Governor Felipe Katu Constantino, AMELIA CARMELA
CONSTANTINO ZOLETA, and then Vice-Governor and now deceased Felipe
Katu Constantino, all of the Provincial Government of Sarangani,
committing the offense in relation to the performance of their duties and
functions, taking advantage of their respective official positions,
conspiring and confederating with Barangay Captain UMBRA ADAM
MACAGCALAT and HADJI MONER MANGALEN, the alleged President and
Treasurer, respectively of Kamanga Muslim-Christian Fishermen's
Cooperative ("Cooperative"), did then and there willfully, unlawfully and
feloniously falsify or cause to be falsified Disbursement Voucher No. 401-
200209-148 dated 20 September 2002 and its supporting documents, by
making it appear that financial assistance in the amount of Three Hundred
and Fifty Thousand Pesos (P350,000.00) had been requested by the
Cooperative, with CESAR MATAS CAGANG, despite knowledge that the
amount of P350,000.00 is to be sourced out from SARO No. D-98000987,
still certifying that cash is available for financial assistance when
Countrywide Development Funds could not be disbursed for financial aids
and assistance pursuant to DBM Circular No. 444, and MARIA DEPOSO
CAMANAY certifying as to the completeness and propriety of the
supporting documents despite non-compliance with Commission on Audit
Circular No. 96-003 prescribing the requirements for disbursements of
financial assistance and aids, thus facilitating the issuance of Development
Bank of the Philippines Check No. 282398 dated 20 September 2002 in the
amount of P350,000.00 and in the name of HADJI MONER MANGELEN,
the alleged Treasurer of the Cooperative, when in truth and in fact,
neither was there a request for financial assistance received by the said
Cooperative after the check was encashed, as herein accused, conspiring
and confederating with each other, did then and there malverse,
embezzle, misappropriate and convert to their own personal use and
benefit the said amount of P350,000.00 thereby causing undue injury to
the government in the aforesaid amount. TIADCc
CONTRARY TO LAW. 33
The cases were docketed as Criminal Case Nos. SB-11-0456 and SB-11-
0457.
Cagang filed a Motion to Quash/Dismiss with Prayer to Void and Set Aside
Order of Arrest while Macagcalat and Mangalen separately filed their own
Motion to Quash/Dismiss with Prayer to Void and Set Aside Order of
Arrest. Cagang argued that there was an inordinate delay of seven (7)
years in the filing of the Informations.
Citing Tatad v. Sandiganbayan 34 and Roque v. Ombudsman, 35 he
argued that the delay violated his constitutional rights to due process and
to speedy disposition of cases. 36 The Office of the Ombudsman, on the
other hand, filed a Comment/Opposition arguing that the accused have
not yet submitted themselves to the jurisdiction of the court and that
there was no showing that delay in the filing was intentional, capricious,
whimsical, or motivated by personal reasons. 37
On September 10, 2012, the Sandiganbayan issued
Resolution 38 denying the Motions to Quash/Dismiss. It found
that Cagang, Macagcalat, and Mangalen voluntarily submitted to the
jurisdiction of the court by the filing of the motions. 39 It also found that
there was no inordinate delay in the issuance of the information,
considering that 40 different individuals were involved with direct
participation in more or less 81 different transactions. 40 It likewise
found Tatad and Roque inapplicable since the filing of the Informations
was not politically motivated. 41 It pointed out that the accused did not
invoke their right to speedy disposition of cases before the Office of the
Ombudsman but only did so after the filing of the Informations. 42
Cagang filed a Motion for Reconsideration 43 but it was denied in a
Resolution 44 dated January 15, 2013. Hence, Cagang filed a Petition
for Certiorari 45 with this Court, docketed as G.R. Nos. 206438 and
206458. 46
In an Urgent Motion to Quash Order of Arrest 47 dated June 13, 2013 filed
before the Sandiganbayan, Cagang alleged that an Order of Arrest was
issued against him. 48 He moved for the quashal of the Order on the
ground that he had a pending Petition for Certiorari before this Court. 49
In an Order 50 dated June 28, 2013, the Sandiganbayan denied the Urgent
Motion to Quash Order of Arrest on the ground that it failed to comply
with the three (3)-day notice rule and that no temporary restraining order
was issued by this Court.
Cagang filed a Motion for Reconsideration 51 but it was denied by
the Sandiganbayan in a Resolution 52 dated September 10, 2013. Hence,
he filed a Petition for Certiorariwith an urgent prayer for the issuance of a
temporary restraining order and/or writ of preliminary
injunction, 53 essentially seeking to restrain the implementation of the
Order of Arrest against him. This Petition was docketed as G.R. Nos.
210141-42.
On February 5, 2014, this Court issued a Temporary Restraining
Order 54 in G.R. Nos. 210141-42 enjoining the Sandiganbayan from
continuing with the proceedings of the case and from implementing the
warrant of arrest against Cagang. This Court likewise consolidated G.R.
Nos. 206438 and 206458 with G.R. Nos. 210141-42. 55 The Office of the
Special Prosecutor submitted its separate Comments 56 to the Petitions
on behalf of the People of the Philippines and the Office of the
Ombudsman. 57
Petitioner argues that the Sandiganbayan committed grave abuse of
a discretion when it dismissed his Motion to Quash/Dismiss since the
Informations filed against him violated his constitutional rights to due
process and to speedy disposition of cases.
Citing Tatad v. Sandiganbayan, 58 he argues that the Office of the
Ombudsman lost its jurisdiction to file the cases in view of its inordinate
delay in terminating the preliminary investigation almost seven (7) years
after the filing of the complaint. 59
Petitioner further avers that the dismissal of cases due to inordinate delay
is not because the revival of the cases was politically motivated, as
in Tatad, but because it violates Article III, Section 16 of
the Constitution 60 and Rule 112, Section 3 (f) 61 of the Rules of
Court. 62 He points out that the Sandiganbayan overlooked two (2)
instances of delay by the Office of the Ombudsman: the first was from the
filing of the complaint on February 10, 2003 to the filing of the
Informations on November 17, 2011, and the second was from the
conclusion of the preliminary investigation in 2005 to the filing of the
Informations on November 17, 2011. 63 AIDSTE
Petitioner asserts that the alleged anomalous transactions in this case
were already thoroughly investigated by the Commission on Audit in its
Audit Report; thus, the Office of the Ombudsman should not have taken
more than seven (7) years to study the evidence needed to establish
probable cause. 64 He contends that "[w]hen the Constitutionenjoins the
Office of the Ombudsman to 'act promptly' on any complaint against any
public officer or employee, it has the concomitant duty to speedily resolve
the same." 65
58
Petitioner likewise emphasizes that the Sandiganbayan should have
granted his Motion to Quash Order of Arrest since there was a pending
Petition before this Court questioning the issuance of the Informations
against him. He argues that the case would become moot if the Order of
Arrest is not quashed. 66
The Office of the Special Prosecutor, on the other hand, alleges that
petitioner, along with his co-accused Camanay, Zoleta, Macagcalat, and
Magalen have remained at large and cannot be located by the police, and
that they have not yet surrendered or been arrested. 67 It argues that the
parameters necessary to determine whether there was inordinate delay
have been repeatedly explained by the Sandiganbayan in the assailed
Resolutions. It likewise points out that petitioner should have invoked his
right to speedy disposition of cases when the case was still pending before
the Office of the Ombudsman, not when the Information was already filed
with the Sandiganbayan. It argues further that Tatad was inapplicable
since there were peculiar circumstances which prompted this Court to
dismiss the information due to inordinate delay. 68
The Office of the Special Prosecutor argues that
the Sandiganbayan already made a judicial determination of the existence
of probable cause pursuant to its duty under Rule 112, Section 5 of
the Rules of Court. 69 It points out that a petition for certiorari is not the
proper remedy to question the denial of a motion to quash and that the
appropriate remedy should be to proceed to trial. 70
Procedurally, the issues before this Court are whether or not the
pendency of a petition for certiorari with this Court suspends the
proceedings before the Sandiganbayan, and whether or not the denial of
a motion to quash may be the subject of a petition for certiorari. This
Court is also tasked to resolve the sole substantive issue of whether or not
the Sandiganbayan committed grave abuse of discretion in denying
petitioner Cesar Matas Cagang's Motion to Quash/Dismiss with Prayer to
Void and Set Aside Order of Arrest and Urgent Motion to Quash Order of
Arrest on the ground of inordinate delay.
I In this case, the petitioner did not proceed to trial but opted to
To give full resolution to this case, this Court must first briefly pass upon
the procedural issues raised by the parties.
Contrary to petitioner's arguments, the pendency of a petition
for certiorari before this Court will not prevent the Sandiganbayan from
proceeding to trial absent the issuance of a temporary restraining order
or writ of preliminary injunction. Under Rule 65, Section 7 71 of the Rules
of Court:
Section 7. Expediting proceedings; injunctive relief. — The court in which
the petition is filed may issue orders expediting the proceedings, and it
may also grant a temporary restraining order or a writ of preliminary
injunction for the preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the principal
case, unless a temporary restraining order or a writ of preliminary
injunction has been issued, enjoining the public respondent from further
proceeding with the case.
The public respondent shall proceed with the principal case within ten
(10) days from the filing of a petition for certiorari with a higher court or
tribunal, absent a temporary restraining order or a preliminary injunction,
or upon its expiration. Failure of the public respondent to proceed with
the principal case may be a ground for an administrative charge.
Since this Court did not issue injunctive relief when the Petition in G.R.
Nos. 206438 and 206458 was filed, the Sandiganbayan cannot be faulted
from proceeding with trial. It was only upon the filing of the Petition in
G.R. Nos. 210141-42 that this Court issued a Temporary Restraining Order
to enjoin the proceedings before the Sandiganbayan.
As a general rule, the denial of a motion to quash is not appealable as it is
merely interlocutory. Likewise, it cannot be the subject of a petition
for certiorari. The denial of the motion to quash can still be raised in the
appeal of a judgment of conviction. The adequate, plain, and speedy
remedy is to proceed to trial and to determine the guilt or innocence of
the accused. Thus, in Galzote v. Briones: 72 AaCTcI
. . . In the usual course of procedure, a denial of a motion to quash filed
by the accused results in the continuation of the trial and the
determination of the guilt or innocence of the accused. If a judgment of
conviction is rendered and the lower court's decision of conviction is
appealed, the accused can then raise the denial of his motion to quash not
only as an error committed by the trial court but as an added ground to
overturn the latter's ruling.
immediately question the denial of his motion to quash via a special civil
action for certiorari under Rule 65 of the Rules of Court.
As a rule, the denial of a motion to quash is an interlocutory order and is
not appealable; an appeal from an interlocutory order is not allowed
under Section 1 (b), Rule 41 of the Rules of Court. Neither can it be a
proper subject of a petition for certiorari which can be used only in the
absence of an appeal or any other adequate, plain and speedy remedy.
The plain and speedy remedy upon denial of an interlocutory order is to
proceed to trial as discussed above. 73
Ordinarily, the denial of a motion to quash simply signals the
commencement of the process leading to trial. The denial of a motion to
quash, therefore, is not necessarily prejudicial to the accused. During trial,
and after arraignment, prosecution proceeds with the presentation of its
evidence for the examination of the accused and the reception by the
court. Thus, in a way, the accused is then immediately given the
opportunity to meet the charges on the merits. Therefore, if the case is
intrinsically without any grounds, the acquittal of the accused and all his
suffering due to the charges can be most speedily acquired.
The rules and jurisprudence, thus, balance procedural niceties and the
immediate procurement of substantive justice. In our general
interpretation, therefore, the accused is normally invited to meet the
prosecution's evidence squarely during trial rather than skirmish on
procedural points.
A party may, however, question the denial in a petition for certiorari if the
party can establish that the denial was tainted with grave abuse of
discretion:
[A] direct resort to a special civil action for certiorari is an exception rather
than the general rule, and is a recourse that must be firmly grounded on
compelling reasons. In past cases, we have cited the interest of a "more
enlightened and substantial justice;" the promotion of public welfare and
public policy; cases that "have attracted nationwide attention, making it
essential to proceed with dispatch in the consideration thereof;" or
judgments on order attended by grave abuse of discretion, as compelling
reasons to justify a petition for certiorari.
In grave abuse of discretion cases, certiorari is appropriate if the
petitioner can establish that the lower court issued the judgment or order
without or in excess of jurisdiction or with grave abuse of discretion, and
the remedy of appeal would not afford adequate and expeditious relief.
The petitioner carries the burden of showing that the attendant facts and
circumstances fall within any of the cited instances. 74
Petitioner alleges that the Sandiganbayan committed grave abuse of
discretion when it denied his Motion to Quash/Dismiss, insisting that the
denial transgressed upon his constitutional rights to due process and to
speedy disposition of cases. A petition for certiorari under Rule 65 is
consistent with this theory.
II
59
The Constitution guarantees the right to speedy disposition of cases.
Under Article III, Section 16:
Section 16. All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies.
The right to speedy disposition of cases should not be confused with the
right to a speedy trial, a right guaranteed under Article III, Section 14 (2)
of the Constitution:
Section 14.
xxx xxx xxx
(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly notified and
his failure to appear is unjustifiable. EcTCAD
The right to a speedy trial is invoked against the courts in a criminal
prosecution. The right to speedy disposition of cases, however, is invoked
even against quasi-judicial or administrative bodies in civil, criminal, or
administrative cases before them. As Abadia v. Court of Appeals 75 noted:
The Bill of Rights provisions of the 1987 Constitution were precisely
crafted to expand substantive fair trial rights and to protect citizens from
procedural machinations which tend to nullify those rights. Moreover,
Section 16, Article III of the Constitution extends the right to a speedy
disposition of cases to cases "before all judicial, quasi-judicial and
administrative bodies." This protection extends to all citizens, including
those in the military and covers the periods before, during and after the
trial, affording broader protection than Section 14(2) which guarantees
merely the right to a speedy trial. 76
Both rights, nonetheless, have the same rationale: to prevent delay in the
administration of justice. In Corpuz v. Sandiganbayan: 77
The right of the accused to a speedy trial and to a speedy disposition of
the case against him was designed to prevent the oppression of the citizen
by holding criminal prosecution suspended over him for an indefinite
time, and to prevent delays in the administration of justice by mandating
the courts to proceed with reasonable dispatch in the trial of criminal
cases. Such right to a speedy trial and a speedy disposition of a case is
violated only when the proceeding is attended by vexatious, capricious
and oppressive delays. The inquiry as to whether or not an accused has
been denied such right is not susceptible by precise qualification. The
concept of a speedy disposition is a relative term and must necessarily be
a flexible concept.
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances.
It secures rights to the accused, but it does not preclude the rights of
public justice. Also, it must be borne in mind that the rights given to the
accused by the Constitution and the Rules of Court are shields, not
weapons; hence, courts are to give meaning to that intent. 78
While the right to speedy trial is invoked against courts of law, the right to
speedy disposition of cases may be invoked before quasi-judicial or
administrative tribunals in proceedings that are adversarial and may result
in possible criminal liability. The right to speedy disposition of cases is
most commonly invoked in fact-finding investigations and preliminary
investigations by the Office of the Ombudsman since neither of these
proceedings form part of the actual criminal prosecution.
The Constitution itself mandates the Office of the Ombudsman to "act
promptly" on complaints filed before it:
Section 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner
against public officials or employees of the Government, or any
subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result thereof. 79
As if to underscore the importance of its mandate, this constitutional
command is repeated in Republic Act No. 6770, 80 which provides:
Section 13. Mandate. — The Ombudsman and his Deputies, as protectors
of the people, shall act promptly on complaints filed in any form or
manner against officers or employees of the government, or of any
subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their administrative, civil
and criminal liability in every case where the evidence warrants in order
to promote efficient service by the Government to the people.
Neither the Constitution nor Republic Act No. 6770 provide for a specific
period within which to measure promptness. Neither do they provide for
criteria within which to determine what could already be considered as
delay in the disposition of complaints. Thus, judicial interpretation
became necessary to determine what could be considered "prompt" and
what length of time could amount to unreasonable or "inordinate delay."
The concept of inordinate delay was introduced
in Tatad v. Sandiganbayan, 81 where this Court was constrained to apply
the "radical relief" of dismissing the criminal complaint against an accused
due to the delay in the termination of the preliminary
investigation. HSAcaE
In Tatad, a report was submitted to the Legal Panel, Presidential Security
Command sometime in October 1974, charging Francisco S. Tatad (Tatad)
with graft and corruption during his stint as Minister of Public Information.
In October 1979, Tatad submitted his resignation. It was only on
December 29, 1979 that a criminal complaint was filed against him. Then
President Ferdinand Marcos accepted his resignation on January 26, 1980.
On April 1, 1980, the Tanodbayan 82 referred the complaint to the
Criminal Investigation Service, Presidential Security Command for fact-
finding. On June 16, 1980, the Investigation Report was submitted finding
Tatad liable for violation of Republic Act No. 3019.
Tatad moved for the dismissal of the case but this was denied on July 26,
1982. His motion for reconsideration was denied on October 5, 1982.
Affidavits and counter-affidavits were submitted on October 25, 1982. On
July 5, 1985, the Tanodbayan issued a resolution approving the filing of
informations against Tatad. Tatad filed a motion to quash on July 22, 1985.
The motion to quash was denied by the Sandiganbayan on August 9, 1985.
The Sandiganbayan, however, ordered the filing of an amended
information to change the date of the alleged commission of the offense.
In compliance, the Tanodbayan submitted its amended information on
August 10, 1985. Tatad filed a motion for reconsideration but it was
denied by the Sandiganbayan on September 17, 1985. Hence, he filed a
Petition for Certiorari and Prohibition with this Court, questioning the
filing of the cases with the Sandiganbayan.
On April 10, 1986, this Court required the parties to move in the premises
considering the change in administration brought about by the EDSA
Revolution and the overthrow of the Marcos regime. On June 20, 1986,
the new Tanodbayan manifested that as the charges were not political in
nature, the State would still pursue the charges against Tatad.
In resolving the issue of whether Tatad's constitutional rights to due
process and to speedy disposition of cases were violated, this Court took
note that the finding of inordinate delay applies in a case-to-case basis:
60
In a number of cases, this Court has not hesitated to grant the so-called
"radical relief" and to spare the accused from undergoing the rigors and
expense of a full-blown trial where it is clear that he has been deprived of
due process of law or other constitutionally guaranteed rights. Of course,
it goes without saying that in the application of the doctrine enunciated
in those cases, particular regard must be taken of the facts and
circumstances peculiar to each case. 83
This Court found that there were peculiar circumstances which attended
the preliminary investigation of the complaint, the most blatant of which
was that the 1974 report against Tatad was only acted upon by the
Tanodbayan when Tatad had a falling out with President Marcos in 1979:
A painstaking review of the facts cannot but leave the impression that
political motivations played a vital role in activating and propelling the
prosecutorial process in this case. Firstly, the complaint came to life, as it
were, only after petitioner Tatad had a falling out with President Marcos.
Secondly, departing from established procedures prescribed by law for
preliminary investigation, which require the submission of affidavits and
counter-affidavits by the Tanodbayan referred the complaint to the
Presidential Security Command for fact-finding investigation and report.
We find such blatant departure from the established procedure as a
dubious, but revealing attempt to involve an office directly under the
President in the prosecution was politically motivated. We cannot
emphasize too strongly that prosecutors should not allow, and should
avoid, giving the impression that their noble office is being used or
prostituted, wittingly or unwittingly, for political ends or other purposes
alien to, or subversive of, the basic and fundamental objective of serving
the interest of justice evenhandedly, without fear or favor to any and all
litigants alike, whether rich or poor, weak or strong, powerless or mighty.
Only by strict adherence to the established procedure may the public's
perception of the impartiality of the prosecutor be enhanced. 84
Thus, the delay of three (3) years in the termination of the preliminary
investigation was found to have been inordinate delay, which was
violative of petitioner's constitutional rights:
We find the long delay in the termination of the preliminary investigation
by the Tanodbayan in the instant case to be violative of the constitutional
right of the accused to due process. Substantial adherence to the
requirements of the law governing the conduct of preliminary
investigation, including substantial compliance with the time limitation
prescribed by the law for the resolution of the case by the prosecutor, is
part of the procedural due process constitutionally guaranteed by the
fundamental law. Not only under the broad umbrella of the due process
clause, but under the constitutionally guarantee of "speedy disposition"
of cases as embodied in Section 16 of the Bill of Rights (both in the 1973
and the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three (3) years cannot
be deemed reasonable or justifiable in the light of the circumstance
obtaining in the case at bar. We are not impressed by the attempt of
the Sandiganbayan to sanitize the long delay by indulging in the
speculative assumption that "the delay may be due to a painstaking and
grueling scrutiny by the Tanodbayan as to whether the evidence
presented during the preliminary investigation merited prosecution of a
former high-ranking government official." In the first place, such a
statement suggests a double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five charges against the
petitioner were for his alleged failure to file his sworn statement of assets
and liabilities required by Republic Act No. 3019, which certainly did not
involve complicated legal and factual issues necessitating such
"painstaking and grueling scrutiny" as would justify a delay of almost three
years in terminating the preliminary investigation. The other two charges
relating to alleged bribery and alleged giving of unwarranted benefits to a
relative, while presenting more substantial legal and factual issues,
certainly do not warrant or justify the period of three years, which it took
the Tanodbayan to resolve the case. 85 HESIcT
Political motivation, however, is merely one of the circumstances to be
factored in when determining whether the delay is inordinate. The
absence of political motivation will not prevent this Court from granting
the same "radical relief." Thus, in Angchangco v. Ombudsman, 86 this
Court dismissed the criminal complaints even if the petition filed before
this Court was a petition for mandamus to compel the Office of the
Ombudsman to resolve the complaints against him after more than six (6)
years of inaction:
Here, the Office of the Ombudsman, due to its failure to resolve the
criminal charges against petitioner for more than six years, has
transgressed on the constitutional right of petitioner to due process and
to a speedy disposition of the cases against him, as well as the
Ombudsman's own constitutional duty to act promptly on complaints
filed before it. For all these past 6 years, petitioner has remained under a
cloud, and since his retirement in September 1994, he has been deprived
of the fruits of his retirement after serving the government for over 42
years all because of the inaction of respondent Ombudsman. If we wait
any longer, it may be too late for petitioner to receive his retirement
benefits, not to speak of clearing his name. This is a case of plain injustice
which calls for the issuance of the writ prayed for. 87
As in Angchangco, this Court has applied the Tatad doctrine
in Duterte v. Sandiganbayan, 88 Roque v.
Ombudsman, 89 Cervantes v. Sandiganbayan, 90 Lopez, Jr. v.
Ombudsman, 91 Licaros v. Sandiganbayan, 92 People v. SPO4
Anonas, 93 Enriquez v. Ombudsman, 94 People v. Sandiganbayan, First
Division, 95 Inocentes v. People, 96 Almeda v.
Ombudsman, 97 People v. Sandiganbayan, Fifth
Division, 98 Torres v. Sandiganbayan, 99 and Remulla v. Sandiganbayan.
100
This Court, however, emphasized that "[a] mere mathematical reckoning
of the time involved is not sufficient" 101 to rule that there was inordinate
delay. Thus, it qualified the application of the Tatad doctrine in cases
where certain circumstances do not merit the application of the "radical
relief" sought.
Despite the promulgation of Tatad, however, this Court struggled to apply
a standard test within which to determine the presence of inordinate
delay. Martin v. Ver, 102decided in 1983, attempted to introduce in this
jurisdiction the "balancing test" in the American case of Barker v. Wingo,
thus:
[T]he right to a speedy trial is a more vague and generically different
concept than other constitutional rights guaranteed to accused persons
and cannot be quantified into a specified number of days or months, and
it is impossible to pinpoint a precise time in the judicial process when the
right must be asserted or considered waived . . .
[A] claim that a defendant has been denied his right to a speedy trial is
subject to a balancing test, in which the conduct of both the prosecution
and the defendant are weighed, and courts should consider such factors
as length of the delay, reason for the delay, the defendant's assertion or
non-assertion of his right, and prejudice to the defendant resulting from
the delay, in determining whether defendant's right to a speedy trial has
been denied . . . 103
The Barker balancing test provides that courts must consider the
following factors when determining the existence of inordinate
delay: first, the length of delay; second, the reason for delay; third, the
defendant's assertion or non-assertion of his or her right; and fourth, the
prejudice to the defendant as a result of the delay.
For a period of time, this balancing test appeared to be the best way to
determine the existence of inordinate delay. Thus, this Court applied both
the Tatad doctrine and the Barker balancing test in the 1991 case
of Gonzales v. Sandiganbayan: 104
61
It must be here emphasized that the right to a speedy disposition of a case,
like the right to speedy trial, is deemed violated only when the proceeding
is attended by vexatious, capricious, and oppressive delays; or when
unjustified postponements of the trial are asked for and secured, or when
without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case tried. Equally applicable is the
balancing test used to determine whether a defendant has been denied
his right to a speedy trial, or a speedy disposition of a case for that matter,
in which the conduct of both the prosecution and the defendant are
weighed, and such factors as length of the delay, reason for the delay, the
defendant's assertion or non-assertion of his right, and prejudice to the
defendant resulting from the delay, are considered. 105 caITAC
The combination of both Tatad and the balancing test was so effective
that it was again applied in Alvizo v. Sandiganbayan, 106 where this Court
took note that:
[D]elays per se are understandably attendant to all prosecutions and are
constitutionally permissible, with the monition that the attendant delay
must not be oppressive. Withal, it must not be lost sight of that the
concept of speedy disposition of cases is a relative term and must
necessarily be a flexible concept. Hence, the doctrinal rule is that in the
determination of whether or not that right has been violated, the factors
that may be considered and balanced are the length of delay, the reasons
for such delay, the assertion or failure to assert such right by the accused,
and the prejudice caused by the delay. 107
Determining the length of delay necessarily involves a query on when a
case is deemed to have commenced. In Dansal v. Fernandez, 108 this
Court recognized that the right to speedy disposition of cases does not
only include the period from which a case is submitted for resolution.
Rather, it covers the entire period of investigation even before trial. Thus,
the right may be invoked as early as the preliminary investigation or
inquest.
In criminal prosecutions, the investigating prosecutor is given a specific
period within which to resolve the preliminary investigation under Rule
112, Section 3 of the Rules of Court. 109 Courts are likewise mandated to
resolve cases within a specific time frame. Article VIII, Section 15 of
the Constitution provides:
Section 15. (1) All cases or matters filed after the effectivity of
this Constitution must be decided or resolved within twenty-four months
from date of submission for the Supreme Court, and, unless reduced by
the Supreme Court, twelve months for all lower collegiate courts, and
three months for all other lower courts.
(2) A case or matter shall be deemed submitted for decision or resolution
upon the filing of the last pending, brief, or memorandum required by
the Rules of Court or by the court itself.
(3) Upon the expiration of the corresponding period, a certification to this
effect signed by the Chief Justice or the presiding judge shall forthwith be
issued and a copy thereof attached to the record of the case or matter,
and served upon the parties. The certification shall state why a decision
or resolution has not been rendered or issued within said period.
(4) Despite the expiration of the applicable mandatory period, the court,
without prejudice to such responsibility as may have been incurred in
consequence thereof, shall decide or resolve the case or matter submitted
thereto for determination, without further delay.
Under Republic Act No. 8493, or the Speedy Trial Act of 1998, the entire
trial period must not exceed 180 days, except as otherwise provided for
by this Court. 110 The law likewise provides for a time limit of 30 days
from the filing of the information to conduct the arraignment, and 30 days
after arraignment for trial to commence. 111 In order to implement the
law, this Court issued Supreme Court Circular No. 38-98 112 reiterating
the periods for the conduct of trial. It also provided for an extended time
limit from arraignment to the conduct of trial:
Section 7. Extended Time Limit. — Notwithstanding the provisions of the
preceding Sections 2 and 6 for the first twelve-calendar-month period
following its effectivity, the time limit with respect to the period from
arraignment to trial imposed by said provision shall be one hundred eighty
(180) days. For the second twelve-month period, the time limit shall be
one hundred twenty (120) days, and for the third twelve-month period
the time limit shall be eighty (80) days.
The Circular likewise provides for certain types of delay which may be
excluded in the running of the periods:
Section 9. Exclusions. — The following periods of delay shall be excluded
in computing the time within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
(1) delay resulting from an examination of the physical and mental
condition of the accused;
(2) delay resulting from proceedings with respect to other criminal
charges against the accused;
(3) delay resulting from extraordinary remedies against interlocutory
orders;
(4) delay resulting from pre-trial proceedings: Provided, that the delay
does not exceed thirty (30) days; ICHDca
(5) delay resulting from orders of inhibition or proceedings relating to
change of venue of cases or transfer from other courts;
(6) delay resulting from a finding of the existence of a valid prejudicial
question; and
(7) delay reasonably attributable to any period, not to exceed thirty (30)
days, during which any proceeding concerning the accused is actually
under advisement.
(b) Any period of delay resulting from the absence or unavailability of an
essential witness.
For purposes of this subparagraph, an essential witness shall be
considered absent when his whereabouts are unknown or his
whereabouts cannot be determined by due diligence. An essential witness
shall be considered unavailable whenever his whereabouts are known but
his presence for trial cannot be obtained by due diligence.
(c) Any period of delay resulting from the fact that the accused is mentally
incompetent or physically unable to stand trial.
(d) If the information is dismissed upon motion of the prosecution and
thereafter a charge is filed against the accused for the same offense, any
period of delay from the date the charge was dismissed to the date the
time limitation would commence to run as to the subsequent charge had
there been no previous charge.
(e) A reasonable period of delay when the accused is joined for trial with
a co-accused over whom the court has not acquired jurisdiction, or as to
whom the time for trial has not run and no motion for separate trial has
been granted.
(f) Any period of delay resulting from a continuance granted by any
court motu proprio or on motion of either the accused or his counsel or
the prosecution, if the court granted such continuance on the basis of his
findings set forth in the order that the ends of justice served by taking
62
such action outweigh the best interest of the public and the accused in a
speedy trial.
These provisions have since been incorporated in Rule 119, Sections
1, 113 2, 114 3, 115 and 6 116 of the Rules of Court.
Several laws have also been enacted providing the time periods for
disposition of cases.
In Republic Act No. 6975, as amended by Republic Act No. 8551,
resolution of complaints against members of the Philippine National
Police must be done within ninety (90) days from the arraignment of the
accused:
Section 55. Section 47 of Republic Act No. 6975 is hereby amended to read
as follows:
"Section 47. Preventive Suspension Pending Criminal Case. — Upon the
filing of a complaint or information sufficient in form and substance
against a member of the PNP for grave felonies where the penalty
imposed by law is six (6) years and one (1) day or more, the court shall
immediately suspend the accused from office for a period not exceeding
ninety (90) days from arraignment: provided, however, that if it can be
shown by evidence that the accused is harassing the complainant and/or
witnesses, the court may order the preventive suspension of the accused
PNP member even if the charge is punishable by a penalty lower than six
(6) years and one (1) day: provided, further, that the preventive
suspension shall not be more than ninety (90) days except if the delay in
the disposition of the case is due to the fault, negligence or petitions of
the respondent: provided, finally, that such preventive suspension may be
sooner lifted by the court in the exigency of the service upon
recommendation of the chief, PNP. Such case shall be subject to
continuous trial and shall be terminated within ninety (90) days from
arraignment of the accused."
Republic Act No. 9165, 117 Section 90 provides that trial for drug-related
offenses should be finished not later than 60 days from the filing of the
information:
Section 90. Jurisdiction. —
xxx xxx xxx
Trial of the case under this Section shall be finished by the court not later
than sixty (60) days from the date of the filing of the information. Decision
on said cases shall be rendered within a period of fifteen (15) days from
the date of submission of the case for resolution. TCAScE
Republic Act No. 9372, 118 Section 48 mandates continuous trial on a
daily basis for cases of terrorism or conspiracy to commit terrorism:
Section 48. Continuous Trial. — In cases of terrorism or conspiracy to
commit terrorism, the judge shall set the continuous trial on a daily basis
from Monday to Friday or other short-term trial calendar so as to ensure
speedy trial.
Republic Act No. 9516 119 amends Presidential Decree No. 1866 120 to
provide for continuous trial for cases involving illegal or unlawful
possession, manufacture, dealing, acquisition, and disposition of firearms,
ammunitions, and explosives:
Section 4-B. Continuous Trial. — In cases involving violations of this
Decree, the judge shall set the case for continuous trial on a daily basis
from Monday to Friday or other short-term trial calendar so as to ensure
speedy trial. Such case shall be terminated within ninety (90) days from
arraignment of the accused.
Implementing rules and regulations have also provided for the speedy
disposition of cases. The Implementing Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases 121 provide that trial
shall commence within three (3) days from arraignment:
Section 21. Speedy Trial of Child Abuse Cases. — The trial of child abuse
cases shall take precedence over all other cases before the courts, except
election and habeas corpus cases. The trial in said cases shall commence
within three (3) days from the date the accused is arraigned and no
postponement of the initial hearing shall be granted except on account of
the illness of the accused or other grounds beyond his control.
The Revised Rules and Regulations Implementing Republic Act No.
9208, 122 as amended by Republic Act No. 10364, 123 mandates the
speedy disposition of trafficking cases:
Section 76. Speedy Disposition of [Trafficking in Persons] Cases. — Where
practicable and unless special circumstance require; otherwise, cases
involving violation of R.A. No. 9208 shall be heard contiguously: with
hearing dates spaced not more than two weeks apart. Unnecessary delay
should be avoided, strictly taking into consideration the Speedy Trial Act
and SC Circular No. 38-98 dated 11 August 1998.
Laws and their implementing rules and regulations, however, do not
generally bind courts unless this Court adopts them in procedural
rules. 124 In any case, this Court has already made several issuances
setting periods for the conduct of trial.
Rule 17, Section 1 of the Rules of Procedure in Environmental
Cases 125 provide that trial must not exceed three (3) months from the
issuance of the pre-trial order:
Section 1. Continuous trial. — The court shall endeavor to conduct
continuous trial which shall not exceed three (3) months from the date of
the issuance of the pre-trial order.
Rule 14, Section 2 of the Rules of Procedure for Intellectual Property
Rights Cases 126 limits the period of presenting evidence to 60 days per
party:
Section 2. Conduct of trial. — The court shall conduct hearings
expeditiously so as to ensure speedy trial. Each party shall have a
maximum period of sixty (60) days to present his evidence-in-chief on the
trial dates agreed upon during the pre-trial.
Supreme Court Administrative Order No. 25-2007 127 provides that trial
in cases involving the killings of political activists and members of the
media must be conducted within 60 days from its commencement:
The cases referred to herein shall undergo mandatory continuous trial and
shall be terminated within sixty (60) days from commencement of trial.
Judgment thereon shall be rendered within thirty (30) days from
submission for decision unless a shorter period is provided by law or
otherwise directed by this Court.
The Guidelines for Decongesting Holding Jails by Enforcing the Right of the
Accused to Bail and to Speedy Trial 128 provide for strict time limits that
must be observed:
Section 8. Observance of time limits. — It shall be the duty of the trial
court, the public or private prosecutor, and the defense counsel to ensure,
subject to the excluded delays specified in Rule 119 of the Rules of Court
and the Speedy Trial Act of 1998, compliance with the following time
limits in the prosecution of the case against a detained accused: cTDaEH
(a) The case of the accused shall be raffled and referred to the trial court
to which it is assigned within three days from the filing of the information;
(b) The court shall arraign the accused within ten (10) days from the date
of the raffle;
(c) The court shall hold the pre-trial conference within thirty (30) days
after arraignment or within ten (10) days if the accused is under
preventive detention; provided, however, that where the direct
testimonies of the witnesses are to be presented through judicial
63
affidavits, the court shall give the prosecution not more than twenty (20)
days from arraignment within which to prepare and submit their judicial
affidavits in time for the pre-trial conference;
(d) After the pre-trial conference, the court shall set the trial of the case
in the pre-trial order not later than thirty (30) days from the termination
of the pre-trial conference; and
(e) The court shall terminate the regular trial within one hundred eighty
(180) days, or the trial by judicial affidavits within sixty (60) days, reckoned
from the date trial begins, minus the excluded delays or postponements
specified in Rule 119 of the Rules of Court and the Speedy Trial Act of
1998.
A dilemma arises as to whether the period includes proceedings in quasi-
judicial agencies before a formal complaint is actually filed. The Office of
the Ombudsman, for example, has no set periods within which to conduct
its fact-finding investigations. They are only mandated to act promptly.
Thus, in People v. Sandiganbayan, Fifth Division, 129this Court stated that
a fact-finding investigation conducted by the Office of the Ombudsman
should not be deemed separate from preliminary investigation for the
purposes of determining whether there was a violation of the right to
speedy disposition of cases:
The State further argues that the fact-finding investigation should not be
considered a part of the preliminary investigation because the former was
only preparatory in relation to the latter; and that the period spent in the
former should not be factored in the computation of the period devoted
to the preliminary investigation.
The argument cannot pass fair scrutiny.
The guarantee of speedy disposition under Section 16 of Article III of
the Constitution applies to all cases pending before all judicial, quasi-
judicial or administrative bodies. The guarantee would be defeated or
rendered inutile if the hair-splitting distinction by the State is
accepted. Whether or not the fact-finding investigation was separate from
the preliminary investigation conducted by the Office of the Ombudsman
should not matter for purposes of determining if the respondents' right to
the speedy disposition of their cases had been violated. 130 (Emphasis
supplied)
People v. Sandiganbayan, Fifth Division 131 must be re-examined.
When an anonymous complaint is filed or the Office of the Ombudsman
conducts a motu proprio fact-finding investigation, the proceedings are
not yet adversarial. Even if the accused is invited to attend these
investigations, this period cannot be counted since these are merely
preparatory to the filing of a formal complaint. At this point, the Office of
the Ombudsman will not yet determine if there is probable cause to
charge the accused.
This period for case build-up cannot likewise be used by the Office of the
Ombudsman as unbridled license to delay proceedings. If its investigation
takes too long, it can result in the extinction of criminal liability through
the prescription of the offense.
Considering that fact-finding investigations are not yet adversarial
proceedings against the accused, the period of investigation will not be
counted in the determination of whether the right to speedy disposition
of cases was violated. Thus, this Court now holds that for the purpose of
determining whether inordinate delay exists, a case is deemed to have
commenced from the filing of the formal complaint and the subsequent
conduct of the preliminary investigation.
In People v. Sandiganbayan, Fifth Division, 132 the ruling that fact-finding
investigations are included in the period for determination of inordinate
delay is abandoned.
With respect to fact-finding at the level of the Ombudsman, the
Ombudsman must provide for reasonable periods based upon its
experience with specific types of cases, compounded with the number of
accused and the complexity of the evidence required. He or she must
likewise make clear when cases are deemed submitted for decision. The
Ombudsman has the power to provide for these rules and it is
recommended that he or she amend these rules at the soonest possible
time. cSaATC
These time limits must be strictly complied with. If it has been alleged that
there was delay within the stated time periods, the burden of proof is on
the defense to show that there has been a violation of their right to
speedy trial or their right to speedy disposition of cases. The defense must
be able to prove first, that the case took much longer than was reasonably
necessary to resolve, and second, that efforts were exerted to protect
their constitutional rights. 133
What may constitute a reasonable time to resolve a proceeding is not
determined by "mere mathematical reckoning." 134 It requires
consideration of a number of factors, including the time required to
investigate the complaint, to file the information, to conduct an
arraignment, the application for bail, pre-trial, trial proper, and the
submission of the case for decision. 135 Unforeseen circumstances, such
as unavoidable postponements or force majeure, must also be taken into
account.
The complexity of the issues presented by the case must be considered in
determining whether the period necessary for its resolution is reasonable.
In Mendoza-Ong v. Sandiganbayan 136 this Court found that "the long
delay in resolving the preliminary investigation could not be justified on
the basis of the records." 137 In Binay v. Sandiganbayan, 138 this Court
considered "the complexity of the cases (not run-of-the-mill variety) and
the conduct of the parties' lawyers" 139 to determine whether the delay
is justifiable. When the case is simple and the evidence is straightforward,
it is possible that delay may occur even within the given periods. Defense,
however, still has the burden to prove that the case could have been
resolved even before the lapse of the period before the delay could be
considered inordinate.
The defense must also prove that it exerted meaningful efforts to protect
accused's constitutional rights. In Alvizo v. Sandiganbayan, 140 the
failure of the accused to timely invoke the right to speedy disposition of
cases may work to his or her disadvantage, since this could indicate his or
her acquiescence to the delay:
Petitioner was definitely not unaware of the projected criminal
prosecution posed against him by the indication of this Court as a
complementary sanction in its resolution of his administrative case. He
appears, however, to have been insensitive to the implications and
contingencies thereof by not taking any step whatsoever to accelerate the
disposition of the matter, which inaction conduces to the perception that
the supervening delay seems to have been without his objection hence
impliedly with his acquiescence. 141
In Dela Peña v. Sandiganbayan, 142 this Court equated this acquiescence
as one that could amount to laches, which results in the waiver of their
rights:
[I]t is worthy to note that it was only on 21 December 1999, after the case
was set for arraignment, that petitioners raised the issue of the delay in
the conduct of the preliminary investigation. As stated by them in their
Motion to Quash/Dismiss, "[o]ther than the counter-affidavits, [they] did
nothing." Also, in their petition, they averred: "Aside from the motion for
extension of time to file counter-affidavits, petitioners in the present case
did not file nor send any letter-queries addressed to the Office of the
Ombudsman for Mindanao which conducted the preliminary
investigation." They slept on their right — a situation amounting to laches.
The matter could have taken a different dimension if during all those four
64
years, they showed signs of asserting their right to a speedy disposition of
their cases or at least made some overt acts, like filing a motion for early
resolution, to show that they were not waiving that right. Their silence
may, therefore be interpreted as a waiver of such right. As aptly stated
in Alvizo, the petitioner therein was "insensitive to the implications and
contingencies" of the projected criminal prosecution posed against him
"by not taking any step whatsoever to accelerate the disposition of the
matter, which inaction conduces to the perception that the supervening
delay seems to have been without his objection, [and] hence impliedly
with his acquiescence." 143
This concept of acquiescence, however, is premised on the presumption
that the accused was fully aware that the preliminary investigation has
not yet been terminated despite a considerable length of time. Thus,
in Duterte v. Sandiganbayan, 144 this Court stated that Alvizo would not
apply if the accused were unaware that the investigation was still ongoing:
Petitioners in this case, however, could not have urged the speedy
resolution of their case because they were completely unaware that the
investigation against them was still on-going. Peculiar to this case, we
reiterate, is the fact that petitioners were merely asked to comment, and
not file counter-affidavits which is the proper procedure to follow in a
preliminary investigation. After giving their explanation and after four
long years of being in the dark, petitioners, naturally, had reason to
assume that the charges against them had already been
dismissed. 145 cHDAIS
Similarly, in Coscolluela v. Sandiganbayan: 146
Records show that they could not have urged the speedy resolution of
their case because they were unaware that the investigation against them
was still on-going. They were only informed of the March 27, 2003
Resolution and Information against them only after the lapse of six (6)
long years, or when they received a copy of the latter after its filing with
the SB on June 19, 2009. In this regard, they could have reasonably
assumed that the proceedings against them have already been
terminated. This serves as a plausible reason as to why petitioners never
followed-up on the case altogether . . .
xxx xxx xxx
Being the respondents in the preliminary investigation proceedings, it was
not the petitioners' duty to follow up on the prosecution of their case.
Conversely, it was the Office of the Ombudsman's responsibility to
expedite the same within the bounds of reasonable timeliness in view of
its mandate to promptly act on all complaints lodged before it. As
pronounced in the case of Barker v. Wingo:
A defendant has no duty to bring himself to trial; the State has that duty
as well as the duty of insuring that the trial is consistent with due
process. 147
Justice Caguioa submits that this Court should depart from Dela Peña. He
explains that the third factor of the Barker balancing test, i.e., waiver by
the accused, was applied within the context of the Sixth
Amendment 148 of the American Constitution in that it presupposes that
the accused has already been subjected to criminal prosecution. He
submits that as the right to speedy disposition of cases may be invoked
even before criminal prosecution has commenced, waiver by the accused
should be inapplicable.
The right to speedy disposition of cases, however, is invoked by a
respondent to any type of proceeding once delay has already
become prejudicial to the respondent. The invocation of the
constitutional right does not require a threat to the right to liberty. Loss
of employment or compensation may already be considered as sufficient
to invoke the right. Thus, waiver of the right does not necessarily require
that the respondent has already been subjected to the rigors of criminal
prosecution. The failure of the respondent to invoke the right even when
or she has already suffered or will suffer the consequences of delay
constitutes a valid waiver of that right.
While the Barker balancing test has American roots, a catena of cases has
already been decided by this Court, starting from Tatad, which have taken
into account the Philippine experience.
The reality is that institutional delay 149 a reality that the court must
address. The prosecution is staffed by overworked and underpaid
government lawyers with mounting caseloads. The courts' dockets are
congested. This Court has already launched programs to remedy this
situation, such as the Judicial Affidavit Rule, 150 Guidelines for
Decongesting Holding Jails by Enforcing the Right of the Accused to Bail
and to Speedy Trial, 151 and the Revised Guidelines for Continuous
Trial. 152 These programs, however, are mere stepping stones. The
complete eradication of institutional delay requires these sustained
actions.
Institutional delay, in the proper context, should not be taken against the
State. Most cases handled by the Office of the Ombudsman involve
individuals who have the resources and who engage private counsel with
the means and resources to fully dedicate themselves to their client's
case. More often than not, the accused only invoke the right to speedy
disposition of cases when the Ombudsman has already rendered an
unfavorable decision. The prosecution should not be prejudiced by private
counsels' failure to protect the interests of their clients or the accused's
lack of interest in the prosecution of their case.
For the court to appreciate a violation of the right to speedy disposition
of cases, delay must not be attributable to the defense. 153 Certain
unreasonable actions by the accused will be taken against them. This
includes delaying tactics like failing to appear despite summons, filing
needless motions against interlocutory actions, or requesting unnecessary
postponements that will prevent courts or tribunals to properly
adjudicate the case. When proven, this may constitute a waiver of the
right to speedy trial or the right to speedy disposition of cases.
If it has been alleged that there was delay beyond the given time periods,
the burden of proof shifts. The prosecution will now have the burden to
prove that there was no violation of the right to speedy trial or the right
to speedy disposition of cases. Gonzales v. Sandiganbayan 154 states that
"vexatious, capricious, and oppressive delays," "unjustified
postponements of the trial," or "when without cause or justifiable motive
a long period of time is allowed to elapse without the party having his [or
her] case tried" 155are instances that may be considered as violations of
the right to speedy disposition of cases. The prosecution must be able to
prove that it followed established procedure in prosecuting the
case. 156 It must also prove that any delay incurred was justified, such as
the complexity of the cases involved or the vast amount of evidence that
must be presented. ISHCcT
The prosecution must likewise prove that no prejudice was suffered by
the accused as a result of the delay. Corpuz v. Sandiganbayan 157 defined
prejudice to the accused as:
Prejudice should be assessed in the light of the interest of the defendant
that the speedy trial was designed to protect, namely: to prevent
oppressive pre-trial incarceration; to minimize anxiety and concerns of
the accused to trial; and to limit the possibility that his defense will be
impaired. Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system. There is also prejudice if the defense witnesses are unable to
recall accurately the events of the distant past. Even if the accused is not
imprisoned prior to trial, he is still disadvantaged by restraints on his
liberty and by living under a cloud of anxiety, suspicion and often, hostility.
His financial resources may be drained, his association is curtailed, and he
is subjected to public obloquy. 158
65
In Coscolluela v. Sandiganbayan: 159
Lest it be misunderstood, the right to speedy disposition of cases is not
merely hinged towards the objective of spurring dispatch in the
administration of justice but also to prevent the oppression of the citizen
by holding a criminal prosecution suspended over him for an indefinite
time. Akin to the right to speedy trial, its "salutary objective" is to assure
that an innocent person may be free from the anxiety and expense of
litigation or, if otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation and
consideration of whatsoever legitimate defense he may interpose. This
looming unrest as well as the tactical disadvantages carried by the passage
of time should be weighed against the State and in favor of the
individual. 160
The consequences of delay, however, do not only affect the accused. The
prosecution of the case will also be made difficult the longer the period of
time passes. In Corpuz v. Sandiganbayan: 161
Delay is a two-edge sword. It is the government that bears the burden of
proving its case beyond reasonable doubt. The passage of time may make
it difficult or impossible for the government to carry its burden.
The Constitution and the Rules do not require impossibilities or
extraordinary efforts, diligence or exertion from courts or the prosecutor,
nor contemplate that such right shall deprive the State of a reasonable
opportunity of fairly prosecuting criminals. As held in Williams v. United
States, for the government to sustain its right to try the accused despite a
delay, it must show two things: (a) that the accused suffered no serious
prejudice beyond that which ensued from the ordinary and inevitable
delay; and (b) that there was no more delay than is reasonably
attributable to the ordinary processes of justice. 162
The consequences of the prosecution's failure to discharge this burden
are severe. Rule 119, Section 9 of the Rules of Court requires that the case
against the accused be dismissed if there has been a violation of the right
to speedy trial:
Section 9. Remedy where accused is not brought to trial within the time
limit. — If the accused is not brought to trial within the time limit required
by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this
rule, the information may be dismissed on motion of the accused on the
ground of denial of his right to speedy trial. The accused shall have the
burden of proving the motion but the prosecution shall have the burden
of going forward with the evidence to establish the exclusion of time
under section 3 of this Rule. The dismissal shall be subject to the rules on
double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute
a waiver of the right to dismiss under this section.
Tatad, as qualified by Angchangco, likewise mandates the dismissal of the
case if there is a violation of the right to speedy disposition of cases. The
immediate dismissal of cases is also warranted if it is proven that there
was malicious prosecution, if the cases were politically motivated, or
other similar instances. Once these circumstances have been proven,
there is no need for the defense to discharge its burden to prove that the
delay was inordinate. CAacTH
To summarize, inordinate delay in the resolution and termination of a
preliminary investigation violates the accused's right to due process and
the speedy disposition of cases, and may result in the dismissal of the case
against the accused. The burden of proving delay depends on whether
delay is alleged within the periods provided by law or procedural rules. If
the delay is alleged to have occurred during the given periods, the burden
is on the respondent or the accused to prove that the delay was
inordinate. If the delay is alleged to have occurred beyond the given
periods, the burden shifts to the prosecution to prove that the delay was
reasonable under the circumstances and that no prejudice was suffered
by the accused as a result of the delay.
The determination of whether the delay was inordinate is not through
mere mathematical reckoning but through the examination of the facts
and circumstances surrounding the case. Courts should appraise a
reasonable period from the point of view of how much time a competent
and independent public officer would need in relation to the complexity
of a given case. If there has been delay, the prosecution must be able to
satisfactorily explain the reasons for such delay and that no prejudice was
suffered by the accused as a result. The timely invocation of the accused's
constitutional rights must also be examined on a case-to-case basis.
III
This Court proceeds to determine whether respondent committed
inordinate delay in the resolution and termination of the preliminary
investigation against petitioner.
There is no showing that this case was attended by malice. There is no
evidence that it was politically motivated. Neither party alleges this fact.
Thus, this Court must analyze the existence and cause of delay.
The criminal complaint against petitioner was filed on February 10, 2003.
On August 11, 2004, the Office of the Ombudsman issued a Resolution
finding probable cause against petitioner. This Resolution, however, was
modified by the Resolution dated October 18, 2004, which ordered the
conduct of further fact-finding investigation against some of the other
respondents in the case. This further fact-finding was resolved by the
Office of the Ombudsman on April 12, 2005. On August 8, 2011, or six (6)
years after the recommendation to file informations against petitioner
was approved by Tanodbayan Marcelo, Assistant Special Prosecutor II
Pilarita T. Lapitan submitted the informations for Ombudsman Carpio
Morales' review. Informations against petitioner were filed on November
17, 2011.
Six (6) years is beyond the reasonable period of fact-finding of ninety (90)
days. The burden of proving the justification of the delay, therefore, is on
the prosecution, or in this case, respondent.
Respondent alleged that the delay in the filing of the informations was
justified since it was still determining whether accused Mary Ann Gadian
(Gadian) could be utilized as a state witness and it still had to verify
accused Felipe Constantino's death. The recommendation, however, to
utilize Gadian as a state witness was approved by Tanodbayan Marcelo
on December 20, 2004. 163 Felipe Constantino's death was verified by
the Sandiganbayan in its November 14, 2006 Order. 164 There is, thus,
delay from November 14, 2006 to August 8, 2011.
This Court finds, however, that despite the pendency of the case since
2003, petitioner only invoked his right to speedy disposition of cases when
the informations were filed on November 17, 2011. Unlike
in Duterte and Coscolluela, petitioner was aware that the preliminary
investigation was not yet terminated.
Admittedly, while there was delay, petitioner has not shown that he
asserted his rights during this period, choosing instead to wait until the
information was filed against him with the Sandiganbayan.
Furthermore, the case before the Sandiganbayan involves the alleged
malversation of millions in public money. The Sandiganbayan has yet to
determine the guilt or innocence of petitioner. In the Decision dated June
17, 2010 of the Sandiganbayan acquitting petitioner in Crim. Case No.
28331:
We wish to iterate our observation gathered from the evidence on record
that the subject transaction is highly suspect. There is a seeming
acceptance of the use of questionable supporting documents to secure
the release of public funds in the province, and the apparent undue haste
66
in the processing and eventual withdrawal of such funds. However,
obvious as the irregularities may be, which can only lead to distrust in the
ability of public officials to safeguard public funds, we are limited to a
review only of the evidence presented vis-à-vis the charges brought forth
before this Court. Thus, We cannot make any pronouncement in regard
to such seeming irregularities. 165 IAETDc
The records of the case show that the transactions investigated are
complex and numerous. As respondent points out, there were over a
hundred individuals investigated, and eventually, 40 of them were
determined to have been involved in 81 different anomalous
transactions. 166 Even granting that the Commission on Audit's Audit
Report exhaustively investigated each transaction, "the prosecution is not
bound by the findings of the Commission on Audit; it must rely on its own
independent judgment in the determination of probable
cause." 167 Delays in the investigation and review would have been
inevitable in the hands of a competent and independent Ombudsman.
The dismissal of the complaints, while favorable to petitioner, would
undoubtedly be prejudicial to the State. "[T]he State should not be
prejudiced and deprived of its right to prosecute the criminal cases simply
because of the ineptitude or nonchalance of the Office of the
Ombudsman." 168 The State is as much entitled to due process as the
accused. In People v. Leviste: 169
[I]t must be emphasized that the state, like any other litigant, is entitled
to its day in court, and to a reasonable opportunity to present its case. A
hasty dismissal such as the one in question, instead of unclogging dockets,
has actually increased the workload of the justice system as a whole and
caused uncalled-for delays in the final resolution of this and other cases.
Unwittingly, the precipitate action of the respondent court, instead of
easing the burden of the accused, merely prolonged the litigation and
ironically enough, unnecessarily delayed the case — in the process,
causing the very evil it apparently sought to avoid. Such action does not
inspire public confidence in the administration of justice. 170
This Court finds that there is no violation of the accused's right to speedy
disposition of cases considering that there was a waiver of the delay of a
complex case. Definitely, granting the present Petitions and finding grave
abuse of discretion on the part of the Sandiganbayan will only prejudice
the due process rights of the State.
IV
This Court now clarifies the mode of analysis in situations where the right
to speedy disposition of cases or the right to speedy trial is invoked.
First, the right to speedy disposition of cases is different from the right to
speedy trial. While the rationale for both rights is the same, the right to
speedy trial may only be invoked in criminal prosecutions against courts
of law. The right to speedy disposition of cases, however, may be invoked
before any tribunal, whether judicial or quasi-judicial. What is important
is that the accused may already be prejudiced by the proceeding for the
right to speedy disposition of cases to be invoked.
Second, a case is deemed initiated upon the filing of a formal complaint
prior to a conduct of a preliminary investigation. This Court acknowledges,
however, that the Ombudsman should set reasonable periods for
preliminary investigation, with due regard to the complexities and
nuances of each case. Delays beyond this period will be taken against the
prosecution. The period taken for fact-finding investigations prior to the
filing of the formal complaint shall not be included in the determination
of whether there has been inordinate delay.
Third, courts must first determine which party carries the burden of proof.
If the right is invoked within the given time periods contained in current
Supreme Court resolutions and circulars, 171 and the time periods that
will be promulgated by the Office of the Ombudsman, the defense has the
burden of proving that the right was justifiably invoked. If the delay occurs
beyond the given time period and the right is invoked, the prosecution has
the burden of justifying the delay.
If the defense has the burden of proof, it must prove first, whether the
case is motivated by malice or clearly only politically motivated and is
attended by utter lack of evidence, and second, that the defense did not
contribute to the delay.
Once the burden of proof shifts to the prosecution, the prosecution must
prove first, that it followed the prescribed procedure in the conduct of
preliminary investigation and in the prosecution of the case; second, that
the complexity of the issues and the volume of evidence made the delay
inevitable; and third, that no prejudice was suffered by the accused as a
result of the delay.
Fourth, determination of the length of delay is never mechanical. Courts
must consider the entire context of the case, from the amount of evidence
to be weighed to the simplicity or complexity of the issues raised. DcHSEa
An exception to this rule is if there is an allegation that the prosecution of
the case was solely motivated by malice, such as when the case is
politically motivated or when there is continued prosecution despite utter
lack of evidence. Malicious intent may be gauged from the behavior of the
prosecution throughout the proceedings. If malicious prosecution is
properly alleged and substantially proven, the case would automatically
be dismissed without need of further analysis of the delay.
Another exception would be the waiver of the accused to the right to
speedy disposition of cases or the right to speedy trial. If it can be proven
that the accused acquiesced to the delay, the constitutional right can no
longer be invoked.
In all cases of dismissals due to inordinate delay, the causes of the delays
must be properly laid out and discussed by the relevant court.
Fifth, the right to speedy disposition of cases or the right to speedy trial
must be timely raised. The respondent or the accused must file the
appropriate motion upon the lapse of the statutory or procedural periods.
Otherwise, they are deemed to have waived their right to speedy
disposition of cases.
WHEREFORE, the Petitions are DENIED. The Temporary Restraining Order
dated February 5, 2014 is LIFTED. The Sandiganbayan is DIRECTED to
resolve Case No. SB-11-CRM-0456 and Case No. SB-11-CRM-0457 with
due and deliberate dispatch.
The period for the determination of whether inordinate delay was
committed shall commence from the filing of a formal complaint and the
conduct of the preliminary investigation. The periods for the resolution of
the preliminary investigation shall be that provided in the Rules of Court,
Supreme Court Circulars, and the periods to be established by the Office
of the Ombudsman. Failure of the defendant to file the appropriate
motion after the lapse of the statutory or procedural periods shall be
considered a waiver of his or her right to speedy disposition of cases.
The ruling in People v. Sandiganbayan, Fifth Division 172 that fact-finding
investigations are included in the period for determination of inordinate
delay is ABANDONED.
SO ORDERED.
Carpio, Acting C.J., Leonardo-de Castro, Del Castillo, Tijam and Reyes, Jr.,
JJ., concur.
Velasco, Jr., J., please see concurring opinion.
Peralta, * Jardeleza, * Martires * and Gesmundo, * JJ., took no part.
Bersamin, J., I join the dissent of J. Caguioa.
Perlas-Bernabe, J., I join the concurring opinion of J. Velasco.
67
Caguioa, J., I dissent. See separate dissenting opinion.

||| (Cagang v. Sandiganbayan, Fifth Division, Quezon City, G.R. Nos.

206438, 206458 & 210141-42, [July 31, 2018])

68
SECOND DIVISION
[G.R. No. 200370. June 7, 2017.]
MARIO VERIDIANO y SAPI, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
LEONEN, J p:
Through this Petition for Review on Certiorari, 1 Mario Veridiano y Sapi
(Veridiano) assails the Decision 2 dated November 18, 2011 and
Resolution 3 dated January 25, 2012 of the Court of Appeals in CA-G.R. CR
No. 33588, which affirmed his conviction for violation of Article II, Section
11 of Republic Act No. 9165. 4 HTcADC
In an Information filed before the Regional Trial Court of San Pablo City,
Laguna, 5 Veridiano was charged with the crime of illegal possession of
dangerous drugs. The Information read:
That on or about January 15, 2008, in the Municipality of Nagcarlan,
Province of Laguna and within the jurisdiction of this Honorable Court, the
above-named accused, not being permitted or authorized by law, did then
and there willfully, unlawfully and feloniously have in his possession,
control and custody one (1) small heat-sealed transparent plastic sachet
containing 2.72 grams of dried marijuana leaves, a dangerous drug.
CONTRARY TO LAW. 6
On October 9, 2008, Veridiano was arraigned. He pleaded not guilty to the
offense charged. Trial on the merits ensued. 7
During trial, the prosecution presented PO1 Guillermo Cabello (PO1
Cabello) and PO1 Daniel Solano (PO1 Solano) to testify. 8
According to the prosecution, at about 7:20 a.m. of January 15, 2008, a
concerned citizen called a certain PO3 Esteves, police radio operator of
the Nagcarlan Police Station, informing him that a certain alias "Baho,"
who was later identified as Veridiano, was on the way to San Pablo City to
obtain illegal drugs. 9
PO3 Esteves immediately relayed the information to PO1 Cabello and PO2
Alvin Vergara (PO2 Vergara) who were both on duty. 10 Chief of Police
June Urquia instructed PO1 Cabello and PO2 Vergara to set up a
checkpoint at Barangay Taytay, Nagcarlan, Laguna. 11
The police officers at the checkpoint personally knew Veridiano. They
allowed some vehicles to pass through after checking that he was not on
board. 12 At around 10:00 a.m, they chanced upon Veridiano inside a
passenger jeepney coming from San Pablo, Laguna. 13 They flagged down
the jeepney and asked the passengers to disembark. 14 The police officers
instructed the passengers to raise their t-shirts to check for possible
concealed weapons and to remove the contents of their pockets. 15
The police officers recovered from Veridiano "a tea bag containing what
appeared to be marijuana." 16 PO1 Cabello confiscated the tea bag and
marked it with his initials. 17Veridiano was arrested and apprised of his
constitutional rights. 18 He was then brought to the police station. 19
At the police station, PO1 Cabello turned over the seized tea bag to PO1
Solano, who also placed his initials. 20 PO1 Solano then made a laboratory
examination request, which he personally brought with the seized tea bag
to the Philippine National Police Crime Laboratory. 21 The contents of the
tea bag tested positive for marijuana. 22
For his defense, Veridiano testified that he went to the fiesta in San Pablo
City on January 15, 2008. 23 After participating in the festivities, he
decided to go home and took a passenger jeepney bound for
Nagcarlan. 24 At around 10:00 a.m., the jeepney passed a police
checkpoint in Barangay Taytay, Nagcarlan. 25 Veridiano noticed that the
jeepney was being followed by three (3) motorcycles, each with two (2)
passengers in civilian attire. 26
When the jeepney reached Barangay Buboy, Nagcarlan, the motorcyclists
flagged down the jeepney. 27 Two (2) armed men boarded the jeepney
and frisked Veridiano. 28However, they found nothing on his
person. 29 Still, Veridiano was accosted and brought to the police station
where he was informed that "illegal drug was . . . found in his
possession." 30
In the Decision dated July 16, 2010, 31 the Regional Trial Court found
Veridiano guilty beyond reasonable doubt for the crime of illegal
possession of marijuana. Accordingly, he was sentenced to suffer a
penalty of imprisonment of twelve (12) years and one (1) day, as
minimum, to twenty (20) years, as maximum, and to pay a fine of
P300,000.00. 32
Veridiano appealed the decision of the trial court asserting that "he was
illegally arrested." 33 He argued that the tea bag containing marijuana is
"inadmissible in evidence [for] being the 'fruit of a poisonous
tree.'" 34 Veridiano further argued that the police officers failed to
comply with the rule on chain of custody. 35 aScITE
On the other hand, the prosecution asserted that "[t]he legality of an
arrest affects only the jurisdiction of the court over [the person of the
accused]." 36 Thus, by entering his plea, Veridiano waived his right to
question any irregularity in his arrest. 37 With regard to the alleged illegal
warrantless search conducted by the police officers, the prosecution
argued that Veridiano's "submissive deportment at the time of the
search" indicated that he consented to the warrantless search. 38
On November 18, 2011, the Court of Appeals rendered a
Decision 39 affirming the guilt of Veridiano. 40
The Court of Appeals found that "Veridiano was caught in flagrante
delicto" of having marijuana in his possession. 41 Assuming that he was
illegally arrested, Veridiano waived his right to question any irregularity
that may have attended his arrest when he entered his plea and
submitted himself to the jurisdiction of the court. 42 Furthermore, the
Court of Appeals held that Veridiano consented to the warrantless search
because he did not protest when the police asked him to remove the
contents of his pocket. 43
Veridiano moved for reconsideration, which was denied in the Resolution
dated January 25, 2012. 44
On March 16, 2012, Veridiano filed a Petition for Review on Certiorari. 45
Petitioner argues that the tea bag containing marijuana leaves was seized
in violation of his right against unreasonable searches and seizures. 46 He
asserts that his arrest was illegal. 47 Petitioner was merely seated inside
the jeepney at the time of his apprehension. He did not act in any manner
that would give the police officers reasonable ground to believe that he
had just committed a crime or that he was committing a
crime. 48 Petitioner also asserts that reliable information is insufficient to
constitute probable cause that would support a valid warrantless
arrest. 49
Since his arrest was illegal, petitioner argues that "the accompanying
[warrantless] search was likewise illegal." 50 Hence, under Article III,
Section 2, 51 in relation to Article III, Section 3 (2) 52 of the Constitution,
the seized tea bag containing marijuana is "inadmissible in evidence [for]
being the fruit of a poisonous tree." 53
Nevertheless, assuming that the seized tea bag containing marijuana is
admissible in evidence, petitioner contends that the prosecution failed to
preserve its integrity. 54The apprehending team did not strictly comply
with the rule on chain of custody under Section 21 of the Implementing
Rules and Regulations of Republic Act No. 9165. 55
69
In a Resolution dated June 13, 2012, this Court required respondent to file
a comment on the petition. 56 In the Manifestation and Motion dated
August 1, 2012, 57respondent stated that it would no longer file a
comment.
The following issues are for this Court's resolution:
First, whether there was a valid warrantless arrest;
Second, whether there was a valid warrantless search against petitioner;
and
Lastly, whether there is enough evidence to sustain petitioner's conviction
for illegal possession of dangerous drugs.
The Petition is granted.
I unreasonable. 66 Conversely, reasonable searches and seizures fall
The invalidity of an arrest leads to several consequences among which
are: (a) the failure to acquire jurisdiction over the person of an accused;
(b) criminal liability of law enforcers for illegal arrest; and (c) any search
incident to the arrest becomes invalid thus rendering the evidence
acquired as constitutionally inadmissible.
Lack of jurisdiction over the person of an accused as a result of an invalid
arrest must be raised through a motion to quash before an accused enters
his or her plea. Otherwise, the objection is deemed waived and an accused
is "estopped from questioning the legality of his [or her] arrest." 58
The voluntary submission of an accused to the jurisdiction of the court
and his or her active participation during trial cures any defect or
irregularity that may have attended an arrest. 59 The reason for this rule
is that "the legality of an arrest affects only the jurisdiction of the court
over the person of the accused." 60 HEITAD
Nevertheless, failure to timely object to the illegality of an arrest does not
preclude an accused from questioning the admissibility of evidence
seized. 61 The inadmissibility of the evidence is not affected when an
accused fails to question the court's jurisdiction over his or her person in
a timely manner. Jurisdiction over the person of an accused and the
constitutional inadmissibility of evidence are separate and mutually
exclusive consequences of an illegal arrest.
As a component of the right to privacy, 62 the fundamental right against
unlawful searches and seizures is guaranteed by no less than
the Constitution. Article III, Section 2 of the Constitution provides:
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. 63
To underscore the importance of an individual's right against unlawful
searches and seizures, Article III, Section 3 (2) of
the Constitution considers any evidence obtained in violation of this right
as inadmissible. 64
The Constitutional guarantee does not prohibit all forms of searches and
seizures. 65 It is only directed against those that are
outside the scope of the prohibition and are not forbidden. 67
In People v. Aruta, 68 this Court explained that the language of
the Constitution implies that "searches and seizures are normally
unreasonable unless authorized by a validly issued search warrant or
warrant of arrest." 69 The requirements of a valid search warrant are laid
down in Article III, Section 2 of the Constitution and reiterated in Rule 126,
Section 4 of the Rules on Criminal Procedure. 70
However, People v. Cogaed 71 clarified that there are exceptional
circumstances "when searches are reasonable even when
warrantless." 72 The following are recognized instances of permissible
warrantless searches laid down in jurisprudence: (1) a "warrantless search
incidental to a lawful arrest," 73 (2) search of "evidence in 'plain view,'"
(3) "search of a moving vehicle," (4) "consented warrantless search[es],"
(5) "customs search," (6) "stop and frisk," and (7) "exigent and emergency
circumstances." 74
There is no hard and fast rule in determining when a search and seizure is
reasonable. In any given situation, "[w]hat constitutes a reasonable . . .
search . . . is purely a judicial question," the resolution of which depends
upon the unique and distinct factual circumstances. 75 This may involve
an inquiry into "the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched, and the character of the articles
procured." 76
II
Pertinent to the resolution of this case is the determination of whether
the warrantless search was incidental to a lawful arrest. The Court of
Appeals concluded that petitioner was caught in flagrante delicto of
having marijuana in his possession making the warrantless search
lawful. 77
This Court disagrees. Petitioner's warrantless arrest was unlawful.
A search incidental to a lawful arrest requires that there must first be a
lawful arrest before a search is made. Otherwise stated, a lawful arrest
must precede the search; "the process cannot be reversed." 78 For there
to be a lawful arrest, law enforcers must be armed with a valid warrant.
Nevertheless, an arrest may also be effected without a warrant.
There are three (3) grounds that will justify a warrantless arrest. Rule 113,
Section 5 of the Revised Rules of Criminal Procedure provides:
Section 5. Arrest Without Warrant; When Lawful. — A peace officer or a
private person may, without a warrant, arrest a person: ATICcS
(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.
The first kind of warrantless arrest is known as an in flagrante
delicto arrest. The validity of this warrantless arrest requires compliance
with the overt act test 79 as explained in Cogaed:
[F]or a warrantless arrest of in flagrante delicto to be affected, "two
elements must concur: (1) the person to be arrested must execute an
overt act indicating that he [or she] has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is
done in the presence or within the view of the arresting officer." 80
Failure to comply with the overt act test renders an in flagrante
delicto arrest constitutionally infirm. In Cogaed, the warrantless arrest
was invalidated as an in flagrante delicto arrest because the accused did
not exhibit an overt act within the view of the police officers suggesting
70
that he was in possession of illegal drugs at the time he was
apprehended. 81
The warrantless search in People v. Racho 82 was also considered
unlawful. 83 The police officers received information that a man was in
possession of illegal drugs and was on board a Genesis bus bound for
Baler, Aurora. The informant added that the man was "wearing a red and
white striped [t]-shirt." 84 The police officers waited for the bus along the
national highway. 85 When the bus arrived, Jack Racho (Racho)
disembarked and waited along the highway for a tricycle. 86 Suddenly,
the police officers approached him and invited him to the police station
since he was suspected of having shabu in his possession. 87 As Racho
pulled out his hands from his pocket, a white envelope fell yielding a
sachet of shabu. 88
In holding that the warrantless search was invalid, this Court observed
that Racho was not "committing a crime in the presence of the police
officers" at the time he was apprehended. 89 Moreover, Racho's arrest
was solely based on a tip. 90 Although there are cases stating that reliable
information is sufficient to justify a warrantless search incidental to a
lawful arrest, they were covered under the other exceptions to the rule
on warrantless searches. 91
Rule 113, Section 5 (b) of the Rules of Court pertains to a hot pursuit
arrest. 92 The rule requires that an offense has just been committed. It
connotes "immediacy in point of time." 93 That a crime was in fact
committed does not automatically bring the case under this rule. 94 An
arrest under Rule 113, Section 5 (b) of the Rules of Court entails a time
element from the moment the crime is committed up to the point of
arrest.
Law enforcers need not personally witness the commission of a crime.
However, they must have personal knowledge of facts and circumstances
indicating that the person sought to be arrested committed it.
People v. Gerente 95 illustrates a valid arrest under Rule 113, Section 5 (b)
of the Rules of Court. In Gerente, the accused was convicted for murder
and for violation of Republic Act No. 6425. 96 He assailed the admissibility
of dried marijuana leaves as evidence on the ground that they were
allegedly seized from him pursuant to a warrantless arrest. 97 On appeal,
the accused's conviction was affirmed. 98 This Court ruled that the
warrantless arrest was justified under Rule 113, Section 5 (b) of the Rules
of Court. The police officers had personal knowledge of facts and
circumstances indicating that the accused killed the victim:
The policemen arrested Gerente only some three (3) hours
after Gerente and his companions had killed Blace. They saw Blace dead
in the hospital and when they inspected the scene of the crime, they
found the instruments of death: a piece of wood and a concrete hollow
block which the killers had used to bludgeon him to death. The eye-
witness, Edna Edwina Reyes, reported the happening to the policemen
and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent
death of Blace and of facts indicating that Gerente and two others had
killed him, they could lawfully arrest Gerente without a warrant. If they
had postponed his arrest until they could obtain a warrant, he would have
fled the law as his two companions did. 99 (Emphasis supplied) TIADCc
The requirement that law enforcers must have personal knowledge of
facts surrounding the commission of an offense was underscored in In Re
Salibo v. Warden. 100
In Re Salibo involved a petition for habeas corpus. The police officers
suspected Datukan Salibo (Salibo) as one (1) of the accused in the
Maguindano Massacre. 101 Salibo presented himself before the
authorities to clear his name. Despite his explanation, Salibo was
apprehended and detained. 102 In granting the petition, this Court
pointed out that Salibo was not restrained under a lawful court process or
order. 103 Furthermore, he was not arrested pursuant to a valid
warrantless arrest: 104
It is undisputed that petitioner Salibo presented himself before the Datu
Hofer Police Station to clear his name and to prove that he is not the
accused Butukan S. Malang. When petitioner Salibo was in the presence
of the police officers of Datu Hofer Police Station, he was neither
committing nor attempting to commit an offense. The police officers had
no personal knowledge of any offense that he might have
committed. Petitioner Salibo was also not an escapee
prisoner. 105 (Emphasis supplied)
In this case, petitioner's arrest could not be justified as an in flagrante
delicto arrest under Rule 113, Section 5 (a) of the Rules of Court. He was
not committing a crime at the checkpoint. Petitioner was merely a
passenger who did not exhibit any unusual conduct in the presence of the
law enforcers that would incite suspicion. In effecting the warrantless
arrest, the police officers relied solely on the tip they received. Reliable
information alone is insufficient to support a warrantless arrest absent
any overt act from the person to be arrested indicating that a crime has
just been committed, was being committed, or is about to be
committed. 106
The warrantless arrest cannot likewise be justified under Rule 113, Section
5 (b) of the Revised Rules of Criminal Procedure. The law enforcers had no
personal knowledge of any fact or circumstance indicating that petitioner
had just committed an offense.
A hearsay tip by itself does not justify a warrantless arrest. Law enforcers
must have personal knowledge of facts, based on their observation, that
the person sought to be arrested has just committed a crime. This is what
gives rise to probable cause that would justify a warrantless search under
Rule 113, Section 5 (b) of the Revised Rules of Criminal Procedure.
III
The warrantless search cannot be justified under the reasonable suspicion
requirement in "stop and frisk" searches.
A "stop and frisk" search is defined in People v. Chua 107 as "the act of a
police officer to stop a citizen on the street, interrogate him, and pat him
for weapon(s) or contraband." 108 Thus, the allowable scope of a "stop
and frisk" search is limited to a "protective search of outer clothing for
weapons." 109
Although a "stop and frisk" search is a necessary law enforcement
measure specifically directed towards crime prevention, there is a need
to safeguard the right of individuals against unreasonable searches and
seizures. 110
Law enforcers do not have unbridled discretion in conducting "stop and
frisk" searches. While probable cause is not required, a "stop and frisk"
search cannot be validated on the basis of a suspicion or hunch. 111 Law
enforcers must have a genuine reason to believe, based on their
experience and the particular circumstances of each case, that criminal
activity may be afoot. 112 Reliance on one (1) suspicious activity alone, or
none at all, cannot produce a reasonable search. 113
In Manalili v. Court of Appeals, 114 the police officers conducted
surveillance operations in Caloocan City Cemetery, a place reportedly
frequented by drug addicts. 115 They chanced upon a male person who
had "reddish eyes and [was] walking in a swaying
manner." 116 Suspecting that the man was high on drugs, the police
officers approached him, introduced themselves, and asked him what he
was holding. 117 However, the man resisted. 118 Upon further
investigation, the police officers found marijuana in the man's
possession. 119 This Court held that the circumstances of the case gave
the police officers justifiable reason to stop the man and investigate if he
was high on drugs. 120
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In People v. Solayao, 121 the police officers were conducting an
intelligence patrol to verify reports on the presence of armed persons
within Caibiran. 122 They met a group of drunk men, one (1) of whom was
the accused in a camouflage uniform. 123 When the police officers
approached, his companions fled leaving behind the accused who was
told not to run away. 124 One (1) of the police officers introduced himself
and seized from the accused a firearm wrapped in dry coconut
leaves. 125 This Court likewise found justifiable reason to stop and frisk
the accused when "his companions fled upon seeing the government
agents." 126 AIDSTE
The "stop and frisk" searches in these two (2) cases were considered valid
because the accused in both cases exhibited overt acts that gave law
enforcers genuine reason to conduct a "stop and frisk" search. In contrast
with Manalili and Solayao, the warrantless search in Cogaed 127 was
considered as an invalid "stop and frisk" search because of the absence of
a single suspicious circumstance that would justify a warrantless search.
In Cogaed, the police officers received information that a certain Marvin
Buya would be transporting marijuana. 128 A passenger jeepney passed
through the checkpoint set up by the police officers. The driver then
disembarked and signaled that two (2) male passengers were carrying
marijuana. 129 The police officers approached the two (2) men, who were
later identified as Victor Cogaed (Cogaed) and Santiago Dayao, and
inquired about the contents of their bags. 130
Upon further investigation, the police officers discovered three (3) bricks
of marijuana in Cogaed's bag. 131 In holding that the "stop and frisk"
search was invalid, this Court reasoned that "[t]here was not a single
suspicious circumstance" that gave the police officers genuine reason to
stop the two (2) men and search their belongings. 132 Cogaed did not
exhibit any overt act indicating that he was in possession of
marijuana. 133
Similar to Cogaed, petitioner in this case was a mere passenger in a
jeepney who did not exhibit any act that would give police officers
reasonable suspicion to believe that he had drugs in his possession.
Reasonable persons will act in a nervous manner in any check point. There
was no evidence to show that the police had basis or personal knowledge
that would reasonably allow them to infer anything suspicious.
IV
Moreover, petitioner's silence or lack of resistance can hardly be
considered as consent to the warrantless search. Although the right
against unreasonable searches and seizures may be surrendered through
a valid waiver, the prosecution must prove that the waiver was executed
with clear and convincing evidence. 134 Consent to a warrantless search
and seizure must be "unequivocal, specific, intelligently given . . . [and
unattended] by duress or coercion." 135
The validity of a consented warrantless search is determined by the
totality of the circumstances. 136 This may involve an inquiry into the
environment in which the consent was given such as "the presence of
coercive police procedures." 137
Mere passive conformity or silence to the warrantless search is only an
implied acquiescence, which amounts to no consent at
all. 138 In Cogaed, this Court observed:
Cogaed's silence or lack of aggressive objection was a natural reaction to
a coercive environment brought about by the police officer's excessive
intrusion into his private space. The prosecution and the police carry the
burden of showing that the waiver of a constitutional right is one which is
knowing, intelligent, and free from any coercion. In all cases, such waivers
are not to be presumed. 139
The presence of a coercive environment negates the claim that petitioner
consented to the warrantless search.
V searches are permissible only when they are founded upon probable
Another instance of a valid warrantless search is a search of a moving
vehicle. The rules governing searches and seizures have been liberalized
when the object of a search is a vehicle for practical purposes. 140 Police
officers cannot be expected to appear before a judge and apply for a
search warrant when time is of the essence considering the efficiency of
vehicles in facilitating transactions involving contraband or dangerous
articles. 141 However, the inherent mobility of vehicles cannot justify all
kinds of searches. 142Law enforcers must act on the basis of probable
cause. 143
A checkpoint search is a variant of a search of a moving vehicle. 144 Due
to the number of cases involving warrantless searches in checkpoints and
for the guidance of law enforcers, it is imperative to discuss the
parameters by which searches in checkpoints should be conducted.
Checkpoints per se are not invalid. 145 They are allowed in exceptional
circumstances to protect the lives of individuals and ensure their
safety. 146 They are also sanctioned in cases where the government's
survival is in danger. 147 Considering that routine checkpoints intrude "on
[a] motorist's right to 'free passage '" 148 to a certain extent, they must
be "conducted in a way least intrusive to motorists." 149 The extent of
routine inspections must be limited to a visual search. Routine inspections
do not give law enforcers carte blanche to perform warrantless
searches. 150 AaCTcI
In Valmonte v. De Villa, 151 this Court clarified that "[f]or as long as the
vehicle is neither searched nor its occupants subjected to a body search,
and the inspection of the vehicle is limited to a visual search, said routine
checks cannot be regarded as violative of an individual's right against
unreasonable search[es]." 152 Thus, a search where an "officer merely
draws aside the curtain of a vacant vehicle which is parked on the public
fair grounds, or simply looks into a vehicle, or flashes a light therein" is not
unreasonable. 153
However, an extensive search may be conducted on a vehicle at a
checkpoint when law enforcers have probable cause to believe that the
vehicle's passengers committed a crime or when the vehicle contains
instruments of an offense. 154
Thus, routinary and indiscriminate searches of moving vehicles are
allowed if they are limited to a visual search. This holds especially true
when the object of the search is a public vehicle where individuals have a
reasonably reduced expectation of privacy. On the other hand, extensive
cause. Any evidence obtained will be subject to the exclusionary principle
under the Constitution.
That the object of a warrantless search is allegedly inside a moving vehicle
does not justify an extensive search absent probable cause. Moreover,
law enforcers cannot act solely on the basis of confidential or tipped
information. A tip is still hearsay no matter how reliable it may be. It is not
sufficient to constitute probable cause in the absence of any other
circumstance that will arouse suspicion.
Although this Court has upheld warrantless searches of moving vehicles
based on tipped information, there have been other circumstances that
justified warrantless searches conducted by the authorities.
In People v. Breis, 155 apart from the tipped information they received,
the law enforcement agents observed suspicious behavior on the part of
the accused that gave them reasonable ground to believe that a crime was
being committed. 156 The accused attempted to alight from the bus after
the law enforcers introduced themselves and inquired about the
ownership of a box which the accused had in their possession. 157 In their
attempt to leave the bus, one (1) of the accused physically pushed a law
enforcer out of the way. 158 Immediately alighting from a bus that had
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just left the terminal and leaving one's belongings behind is unusual Section 3 (2) of the Constitution. There being no evidence to support his
conduct. 159 conviction, petitioner must be acquitted.

In People v. Mariacos, 160 a police officer received information that a bag
containing illegal drugs was about to be transported on a passenger
jeepney. 161 The bag was marked with "O.K." 162 On the basis of the tip,
a police officer conducted surveillance operations on board a
jeepney. 163 Upon seeing the bag described to him, he peeked inside and
smelled the distinct odor of marijuana emanating from the bag. 164 The
tipped information and the police officer's personal observations gave rise
to probable cause that rendered the warrantless search valid. 165
WHEREFORE, the Decision dated July 16, 2010 of the Regional Trial Court
in Criminal Case No. 16976-SP and the Decision dated November 18, 2011
and Resolution dated January 25, 2012 of the Court of Appeals in CA-G.R.
CR No. 33588 are REVERSED and SET ASIDE. Petitioner Mario Veridiano y
Sapi is hereby ACQUITTED and is ordered immediately RELEASED from
confinement unless he is being held for some other lawful cause.
SO ORDERED.

The police officers in People v. Ayangao 166 and People v. Carpio and Peralta, JJ., concur.
Libnao 167 likewise received tipped information regarding the transport Mendoza * and Martires, ** JJ., are on official leave.
of illegal drugs. In Libnao, the police officers had probable cause to arrest
the accused based on their three (3)-month long surveillance operation in ||| (Veridiano y Sapi v. People, G.R. No. 200370, [June 7, 2017])
the area where the accused was arrested. 168 On the other hand,
in Ayangao, the police officers noticed marijuana leaves protruding
through a hole in one (1) of the sacks carried by the accused. 169

In the present case, the extensive search conducted by the police officers
exceeded the allowable limits of warrantless searches. They had no
probable cause to believe that the accused violated any law except for the
tip they received. They did not observe any peculiar activity from the
accused that may either arouse their suspicion or verify the tip. Moreover,
the search was flawed at its inception. The checkpoint was set up to target
the arrest of the accused.

There are different hybrids of reasonable warrantless searches. There are

searches based on reasonable suspicion as in Posadas v. Court of
Appeals 170 where this Court justified the warrantless search of the
accused who attempted to flee with a buri bag after the police officers
identified themselves. 171

On the other hand, there are reasonable searches because of heightened

security. In Dela Cruz v. People, 172 the search conducted on the accused
was considered valid because it was done in accordance with routine
security measures in ports. 173 This case, however, should not be
construed to apply to border searches. Border searches are not
unreasonable per se; 174 there is a "reasonable reduced expectation of
privacy" when travellers pass through or stop at airports or other ports of
travel. 175 EcTCAD

The warrantless search conducted by the police officers is invalid.

Consequently, the tea bag containing marijuana seized from petitioner is
rendered inadmissible under the exclusionary principle in Article III,
73