G.R. No.

219468, June 08, 2016

JOSE BURGOS, JR., Petitioner, v. SPOUSES ELADIO SJ. NAVAL AND ARLINA B. NAVAL, AND AMALIA B.
NAVAL, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Resolutions dated March 5, 20152 and July 2, 20153 of the
Court of Appeals (CA) in CA-G.R. SP No. 138203, which denied petitioner Jose Burgos, Jr.'s (Burgos) petition for
certiorari4 before it for his lack of authority to initiate and bring the same in the name of the People of the Philippines
(People).

The Facts

This case stemmed from a letter-complaint5 dated April 26, 2012 filed by Burgos, before the Office of the Provincial
Prosecutor, Taytay, Rizal, charging respondents spouses Eladio and Arlina Naval (Sps. Naval) and their daughter,
Amalia Naval (Amalia; collectively respondents), of the crime of Estafa through Falsification of Public Documents.
Burgos alleged that he and his wife, Rubie S. Garcia-Burgos, were the registered owners of a lot with an area of
1,389 square meters, situated in the Municipality of Taytay, Rizal, covered by Transfer Certificate of Title (TCT) No.
550579 (subject lot).6 On November 19, 1996, the subject lot was purportedly mortgaged to a certain Antonio
Assad,7 and subsequently, Burgos decided to obtain a loan from Sps. Naval in order to avoid foreclosure.
Respondents agreed and asked spouses Burgos to sign some blank documents in return -to which they faithfully
complied.

Sometime in February 2011, Burgos allegedly discovered that TCT No. 550579 was cancelled, and a new one was
issued, i.e., TCT No. 644582,9 in favor of Sps. Naval on April 1, 1998. He claimed that the blank documents which
he and his wife previously signed turned out to be a receipt10 and a Deed of Absolute Sale11 over the subject lot
through the ploy and conspiracy of respondents. Thereafter, or on February 11, 2013, an Information 12 was filed
before the Regional Trial Court of Antipolo City, Branch 97 (RTC), docketed as Criminal Case No. 13-45768, accusing
respondents of having committed the aforesaid crime.

Before arraignment, respondents filed a motion to quash14 based on the following grounds: (a) that their criminal
liability has been extinguished due to prescription;15 (b) that the information failed to charge Amalia with an
offense;16 and (c) that they were not afforded the opportunity of a preliminary investigation.17 Respondents averred
that since the information was filed on February 11, 2013, beyond the reglementary period often (10) years from
the registration of the title on April 1, 1998, the crime had

already prescribed. They also claimed that the information did not contain any specific charge against Amalia. Finally,
they maintained that they were deprived of their right to dispute the allegations of the

complaint during the preliminary investigation.

The RTC Ruling

In an Order19 dated August 14, 2013, the RTC granted respondents' motion and, consequently, dismissed the case
on the ground of prescription.

The RTC essentially observed that the prescriptive period for the alleged crime commenced from the time Burgos
had constructive notice of the alleged falsification, i.e., when the document was registered with the Register of Deeds
on April 1, 1998. Therefore, since more than ten (10) years had elapsed when the

information was filed on February 11, 2013, the subject crime had prescribed.20

Aggrieved, Burgos moved for reconsideration,21 which was denied in an Order22 dated July 14, 2014. Notably, the
RTC declared that it could not order the public prosecutor to amend the information to include the specific amount
of damage sustained by Burgos amounting to P8,500,000.00, as it would improperly infringe his executive
functions.23 Thus, Burgos elevated the matter to the CA via a petition for certiorari, docketed as CA-G.R. SP No.
138203.

The CA Ruling

In a Resolution24 dated March 5, 2015, the CA dismissed the petition for failure of Burgos to join the People in his
certiorari petition as required by the Administrative Code of 1987.

Unstirred, Burgos moved for reconsideration,26 which was likewise denied in a Resolution dated July 2, 2015.
Significantly, the CA observed that the Office of the Solicitor General (OSG) has not consented to the filing of the
certiorari petition;27 hence, this petition before the Court.

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA correctly dismissed the certiorari petition on the ground
that the People, as represented by the OSG, was not impleaded as a party.

The Court's Ruling

In his petition, Burgos averred that the CA Resolutions dated March 5, 2015 and July 2, 2015 should be declared null
and void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He claimed
that he already complied with the directive to furnish the OSG with a copy of the certiorari petition before the CA,28
and that he even made a letter dated April 7, 2015,29 requesting the OSG for authority to appear and prosecute the
case on behalf of the People. Relatedly, he prayed for the reinstatement of the Information and/or a declaration that
prescription has not yet set in as the crime of Estafa through Falsification of Public Documents was only discovered
sometime in February 2011.

In their comment,31 respondents maintained that Burgos nevertheless failed to furnish the OSG with a copy of the
certiorari petition filed before the CA as mandated by Section 3,32 Rule 46 of the Rules of

Court, which is a sufficient ground for its dismissal.33 In fact, they averred that Burgos did not even attempt to
change or amend the title of the petition from "Jose Burgos, Jr." to "People of the Philippines." 34 Moreover, they
pointed out that Burgos's letter-request for authority addressed to the OSG was filed only on April 10, 2015 or nine
(9) days after Burgos's receipt of the adverse March 5, 2015 CA Resolution, further alleging that mere request from
the OSG is not tantamount to authority.

The Court finds for respondents.

Jurisprudence dictates that it is the OSG which possesses the requisite authority to represent the People in an appeal
on the criminal aspect of a case.36 The OSG is "the law office of the Government whose specific powers and functions
include that of representing the Republic and/or the [P]eople before any court in any action which affects the welfare
of the people as the ends of justice may require."37 Section

35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code38 provides that:

Section 35. Powers and Functions. - The Office of the Solicitor General shall 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 lawyer, x x x. It shall have the following specific powers and functions

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals
in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a
party. (Emphases supplied)

In People v. Piccio (Piccio),39 this Court held that "if there is a dismissal of a criminal case by the trial court or if
there is an acquittal of the accused, it is only the OSG that may bring an appeal on the criminal aspect representing
the People. The rationale therefor is rooted in the principle that the party affected by the dismissal of the criminal
action is the People and not the petitioners who are mere complaining witnesses. For this reason, the People are
therefore deemed as the real parties in interest in the criminal case and, therefore, only the OSG can
represent them in criminal proceedings pending in the CA or in this Court. In view of the corollary principle
that every action must be prosecuted or defended in the name of the real party in interest who stands to be benefited
or injured by the judgment in the suit, or by the party entitled to the avails of the suit, an appeal of the criminal case
not filed by the People as represented by the OSG is perforce dismissible. The private complainant or the offended
party may, however, file an appeal without the intervention of the OSG but only insofar as the civil liability of the
accused is concerned. He may also file a special civil action for certiorari even without the intervention of
the OSG, but only to the end of preserving his

interest in the civil aspect of the case.

In this case, records show that Burgos's petition for certiorari in CA-G.R. SP No. 138203 sought for the
reinstatement of the Information and/or a ruling that the crime has not vet prescribed.41

Accordingly, the same was not intended to merely preserve his interest in the civil aspect of the case. Thus, as his
certiorari petition was filed seeking for relief/s in relation to the criminal aspect of the case, it is necessary that the
same be filed with the authorization of the OSG, which, by law, is the proper representative of the People, the real
party in interest in the criminal proceedings. As the CA aptly noted, "[t]o this date, the [OSG] as appellant's counsel
of the [People] has not consented to the filing of the present suit."42 There being no authorization given - as his
request to the OSG filed on April 10, 2015 was not shown to have been granted - the certiorari petition was rightfully
dismissed.

It must, however, be clarified that the CA's dismissal of Burgos's certiorari petition is without prejudice to his filing
of the appropriate action to preserve his interest in the civil aspect of the Estafa through Falsification of Public
Documents case, provided that the parameters of Rule 111 of the Rules of Criminal Procedure are complied with It
is noteworthy to point out that "[t]he extinction of the penal action does not carry with it the extinction of the civil
action where[:] (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b)
the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise
from or is not based upon the crime of which the accused was acquitted. The civil action based on delict may,
however, be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist."44 In this case, the RTC did not render any ruling that
the act or omission from which the civil liability may arise did not exist; instead, the RTC granted the motion to quash
and thereby, dismissed the criminal case on the sole ground of prescription. Any misgivings regarding the propriety
of that disposition is for the People, thru the OSG, and not for Burgos to argue. As earlier intimated, Burgos's remedy
is to institute a civil case under the parameters of Rule 111 of the Rules of Criminal Procedure.

WHEREFORE, the petition is DENIED. The Resolutions dated March 5, 2015 and July 2, 2015 of the Court of Appeals
in CA-G.R. SP No. 138203 are hereby AFFIRMED. SO ORDERED.
RUTH D. BAUTISTA, Petitioner, v. COURT OF APPEALS, OFFICE OF THE REGIONAL STATE PROSECUTOR, REGION
IV, and SUSAN ALOÑA, Respondents.

This petition for certiorari presents a new dimension in the ever controversial Batas Pambansa Bilang 22 or The Bouncing Checks Law. The question
posed is whether the drawer of a check which is dishonored due to lack of sufficient funds can be prosecuted under BP 22 even if the check is
presented for payment after ninety (90) days from its due date. The burgeoning jurisprudence on the matter appears silent on this point.

Sometime in April 1998 petitioner Ruth D. Bautista issued to private respondent Susan Aloña Metrobank Check No. 005014037 dated 8 May 1998
for P1,500,000.00 drawn on Metrobank Cavite City Branch. According to private respondent, petitioner assured her that the check would be
sufficiently funded on the maturity date.

On 20 October 1998 private respondent presented the check for payment. The drawee bank dishonored the check because it was drawn against
insufficient funds (DAIF).

On 16 March 1999 private respondent filed a complaint-affidavit with the City Prosecutor of Cavite City.1 In addition to the details

of the issuance and the dishonor of the check, she also alleged that she made repeated demands on petitioner to make arrangements for the payment
of the check within five (5) working days after receipt of notice of dishonor from the bank, but that petitioner failed to do so.

Petitioner then submitted her own counter-affidavit asserting in her defense that presentment of the check within ninety (90) days from due date
thereof was an essential element of the offense of violation of BP 22. Since the check was presented for payment 166 days after its due date, it was
no longer punishable under BP 22 and therefore the complaint should be dismissed for lack of merit. She also claimed that she already assigned
private respondent her condominium unit at Antel Seaview Condominium, Roxas Boulevard, as full payment for the bounced checks thus
extinguishing her criminal liability.

On 22 April 1999, the investigating prosecutor issued a resolution recommending the filing of an Information against petitioner for violation of BP
22, which was approved by the City Prosecutor.

On 13 May 1999 petitioner filed with the Office of the Regional State Prosecutor (ORSP) for Region IV a petition for review of the 22 April 1999
resolution. The ORSP denied the petition in a one (1)-page resolution dated 25 June 1999. On 5 July 1999 petitioner filed a motion for
reconsideration, which the ORSP also denied on 31 August 1999. According to the ORSP, only resolutions of prosecutors dismissing a criminal
complaint were cognizable for review by that office, citing Department Order No. 223.

On 1 October 1999 petitioner filed with the Court of Appeals a petition for review of the resolution of the ORSP, Region IV, dated 22 April 1999
as well as the order dated 31 August 1999 denying reconsideration. The appellate court issued the assailed Resolution dated 26 October 1999
denying due course outright and dismissing the petition.2 According to respondent appellate court -

A petition for review is appropriate under Rule 42 (1997 Rules of Civil Procedure) from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction, filed in the Court of Appeals. Rule 43 x x x provides for appeal, via a petition for review x x x from judgment
or final orders of the Court of Tax Appeals and Quasi- Judicial Agencies to the Court of Appeals. Petitioner's "Petition for Review" of the ORSP
resolution does not fall under any of the agencies mentioned in Rule 43 x x x x It is worth to note that petitioner in her three (3) assigned errors
charged the ORSP of "serious error of law and grave abuse of discretion." The grounds relied upon by petitioner are proper in a petition for
certiorari x x x x Even if We treat the "Petition for Review" as a petition for certiorari, petitioner failed to allege the essential requirements of a
special civil action. Besides, the remedy of petitioner is in the Regional Trial Court, following the doctrine of hierarchy of courts x x x x (italics
supplied)

First, some ground rules. This case went to the Court of Appeals by way of petition for review under Rule 43 of the 1997 Rules of Civil Procedure.
Rule 43 applies to "appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of
or authorized by any quasi-judicial agency in the exercise of quasi-judicial functions."3

Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citing Cojuangco v. PCGG,4 Koh
v. Court of Appeals,5 Andaya v. Provincial Fiscal of Surigao del Norte6 and Crespo v. Mogul.7 In these cases this Court held that the power to
conduct preliminary investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like quasi-judicial bodies, the
prosecutor is an office in the executive department exercising powers akin to those of a court. Here is where the similarity ends.

A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial body has been
defined as "an organ of government other than a court and other than a legislature which affects the rights of private parties through either
adjudication or rule-making."8

In Luzon Development Bank v. Luzon Development Bank Employees,9 we held that a voluntary arbitrator, whether acting
solely or in a panel, enjoys in law the status of a quasi-judicial agency, hence his decisions and awards are appealable to the Court of Appeals.
This is so because the awards of voluntary arbitrators become final and executory upon the lapse of the period to appeal;10 and since their awards
determine the rights of parties, their decisions have the same effect as judgments of a court. Therefore, the proper remedy from an award of a
voluntary arbitrator is a petition for review to the Court of Appeals, following Revised Administrative Circular No. 1-95, which provided for a
uniform procedure for appellate review of all adjudications of quasi-judicial entities, which is now embodied in Rule 43 of the 1997 Rules of Civil
Procedure.

On the other hand, the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons
who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the
accused is guilty thereof.11 While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately,
that pass judgment on the accused, not the fiscal.12

Hence, the Office of the Prosecutor is not a quasi-judicial body; necessarily, its decisions approving the filing of a criminal complaint are not
appealable to the Court of Appeals under Rule 43. Since the ORSP has the power to resolve appeals with finality only where the penalty prescribed
for the offense does not exceed prision correccional, regardless of the imposable fine,13 the only remedy of petitioner, in the absence of grave
abuse of discretion, is to present her defense in the trial of the case.

Besides, it is well-settled that the courts cannot interfere with the discretion of the fiscal to determine the specificity
and adequacy of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form
or substance or if he finds no ground to continue with the inquiry; or, he may otherwise proceed with the investigation
if the complaint is, in his view, in due and proper form.14

In the present recourse, notwithstanding the procedural lapses, we give due course to the petition, in view of the
novel legal question involved, to prevent further delay of the prosecution of the criminal case below, and more
importantly, to dispel any notion that procedural technicalities are being used to defeat the substantive rights of
petitioner.

Petitioner is accused of violation of BP 22 the substantive portion of which reads -

Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee
bank for the payment of such in full upon presentment, which check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty (30)
days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check
which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion
of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which
reason it is dishonored by the drawee bank x x x x (italics supplied).

An analysis of Sec. 1 shows that The Bouncing Checks Law penalizes two (2) distinct acts: First, making or drawing
and issuing any check to apply on account or for value, knowing at the time of issue that the drawer does not have
sufficient funds in or credit with the drawee bank; and, second, having sufficient funds in or credit with the drawee
bank shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within
a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee
bank.15

In the first paragraph, the drawer knows that he does not have sufficient funds to cover the check at the time of its
issuance, while in the second paragraph, the drawer has sufficient funds at the time of issuance but fails to keep
sufficient funds or maintain credit within ninety (90) days from the date appearing on the check. In both instances,
the offense is consummated by the dishonor of the check for insufficiency of funds or credit.

The check involved in the first offense is worthless at the time of issuance since the drawer had neither sufficient
funds in nor credit with the drawee bank at the time, while that involved in the second offense is good when issued
as drawer had sufficient funds in or credit with the drawee bank when issued.16 Under the first offense, the ninety
(90)-day presentment period is not expressly provided, while such period is an express element of the second
offense.17

From the allegations of the complaint, it is clear that petitioner is being prosecuted for violation of the first paragraph
of the offense.

Petitioner asserts that she could not be prosecuted for violation of BP 22 on the simple ground that the subject check
was presented 166 days after the date stated thereon. She cites Sec. 2 of BP 22 which reads -

Sec. 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment which
is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90)
days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit
unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment
in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been
paid by the drawee (italics supplied).

Petitioner interprets this provision to mean that the ninety (90)- day presentment period is an element of the offenses
punished in BP 22. She asseverates that "for a maker or issuer of a check to be covered by B.P. 22, the check issued
by him/her is one that is dishonored when presented for payment within ninety (90) days from date of the check. If
the dishonor occurred after presentment for payment beyond the ninety (90)-day period, no criminal liability
attaches; only a civil case for collection of sum of money may be filed, if warranted." To bolster this argument, she
relies on the view espoused by Judge David G. Nitafan in his treatise - 18

Although evidentiary in nature, section 2 of the law must be taken as furnishing an additional element of the offense
defined in the first paragraph of section 1 because it provides for the evidentiary fact of "knowledge of insufficiency
of funds or credit" which is an element of the offense defined in said paragraph; otherwise said provision of section
2 would be rendered without meaning and nugatory. The rule of statutory construction is that the parts of a statute
must be read together in such a manner as to give effect to all of them and that such parts shall not be construed
as contradicting each other. The same section cannot be deemed to supply an additional element for the offense
under the second paragraph of section 1 because the 90-day presentment period is already a built-in element in the
definition of said offense (italics supplied).

We are not convinced. It is fundamental that every element of the offense must be alleged in the complaint or
information, and must be proved beyond reasonable doubt by the prosecution. What facts and circumstances are
necessary to be stated must be determined by reference to the definitions and the essentials of the specific crimes.19

The elements of the offense under BP 22 are (a) the making, drawing and issuance of any check to apply to account
or for value; (b) the maker, drawer or issuer knows at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment; and, (c) the check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for
the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

The ninety (90)-day period is not among these elements. Section 2 of BP 22 is clear that a dishonored check
presented within the ninety (90)-day period creates a prima facie presumption of knowledge of insufficiency of funds,
which is an essential element of the offense. Since knowledge involves a state of mind difficult to establish, the
statute itself creates a prima facie presumption of the existence of this element from the fact of drawing, issuing or
making a check, the payment of which was subsequently refused for insufficiency of funds.21 The term prima facie
evidence denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports
or to establish the facts, or to counterbalance the presumption of innocence to warrant a conviction. 22

The presumption in Sec. 2 is not a conclusive presumption that forecloses or precludes the presentation of evidence
to the contrary.23 Neither does the term prima facie evidence preclude the presentation of other evidence that may
sufficiently prove the existence or knowledge of insufficiency of funds or lack of credit. Surely, the law is not so
circumscribed as to limit proof of knowledge exclusively to the dishonor of the subject check when presented within
the prescribed ninety (90) day period. The deliberations on the passage of BP 22 (then known as Cabinet Bill No. 9)
between the author, former Solicitor General Estelito P. Mendoza, and Bataan Assemblyman Pablo Roman prove
insightful -

MR. ROMAN: x x x x Under Section 1, who is the person who may be liable under this Section? Would it be the maker
or the drawer? How about the endorser, Mr. Speaker?

MR. MENDOZA: Liable.

MR. ROMAN: The endorser, therefore, under Section 1 is charged with the duty of knowing at the time he endorses
and delivers a check . . . .

MR. MENDOZA: If the endorser is charged for violation of the Act then the fact of knowledge must be proven by
positive evidence because the presumption of knowledge arises only against the maker or the drawer. It does not
arise as against endorser under the following section (italics supplied).

MR. ROMAN: But under Section 1, it says here: "Any person who shall make or draw or utter or deliver any check."
The preposition is disjunctive, so that any person who delivers any check knowing at the time of such making or such
delivery that the maker or drawer has no sufficient funds would be liable under Section 1.

MR. MENDOZA: That is correct Mr. Speaker. But, as I said, while there is liability even as against endorser, for
example, the presumption of knowledge of insufficient funds arises only against the maker or drawer under Section
2.

MR. ROMAN: Yes, Mr. Speaker. It is true; however, under Section 1, endorsers of checks or bills of exchange would
find it necessary since they may be charged with the knowledge at the time they negotiate bills of exchange they
have no sufficient funds in the bank or depository.

MR. MENDOZA: In order that an endorser may be held liable, there must be evidence showing that at the time he
endorsed the check he was aware that the drawer would not have sufficient funds to cover the check upon
presentation. That evidence must be

presented by the prosecution. However, if the one changed is the drawer, then that evidence need not be presented by the prosecution because that
fact would be established by presumption under Section 2 (italics supplied).24

An endorser who passes a bad check may be held liable under BP 22, even though the presumption of knowledge does not apply to him, if there is
evidence that at the time of endorsement, he was aware of the insufficiency of funds. It is evident from the foregoing deliberations that the
presumption in Sec. 2 was intended to facilitate proof of knowledge and not to foreclose admissibility of other evidence that may also prove such
knowledge. Thus, the only consequence of the failure to present the check for payment within ninety (90) days from the date stated is that there
arises no prima facie presumption of knowledge of insufficiency of funds. But the prosecution may still prove such knowledge through other
evidence. Whether such evidence is sufficient to sustain probable cause to file the information is addressed to the sound discretion of the City
Prosecutor and is a matter not controllable by certiorari. Certainly, petitioner is not left in a lurch as the prosecution must prove knowledge without
the benefit of the presumption, and she may present whatever defenses are available to her in the course of the trial.

The distinction between the elements of the offense and the evidence of these elements is analogous or akin to the difference between ultimate facts
and evidentiary facts in civil cases. Ultimate facts are the essential and substantial facts which either form the basis of the primary right and duty
or which directly make up the wrongful acts or omissions of the defendant, while evidentiary facts are those which tend to prove or establish said
ultimate facts.25 Applying this analogy to the case at bar, knowledge of insufficiency of funds is the ultimate fact, or element of the offense that
needs to be proved, while dishonor of the check presented within ninety (90) days is merely the evidentiary fact of such knowledge.

It is worth reiterating that courts will not normally interfere with the prosecutor's discretion to file a criminal case when there is probable cause to
do so. Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.26 The prosecutor
has ruled that there is probable cause in this case, and we see no reason to disturb the finding.

WHEREFORE, the assailed Resolution of the Court of Appeals dated 26 October 1999 which dismissed the petition for review questioning the
resolution of the Office of the Regional State Prosecutor, Region IV, dated 22 April 1999, and its order dated 31 August 1999 denying
reconsideration is AFFIRMED. Costs against petitioner.

SO ORDERED.
MARILOU S. LAUDE AND MESEHILDA S. LAUDE, Petitioners, v. HON. ROLINE M. GINEZ-JABALDE,
PRESIDING JUDGE, BRANCH 74, REGIONAL TRIAL COURT OF THE CITY OF OLONGAPO; HON. PAQUITO
N. OCHOA, JR., EXECUTIVE SECRETARY; HON. ALBERT F. DEL ROSARIO, SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS; HON. GEN. GREGORIO PIO P. CATAPANG, CHIEF OF STAFF OF THE ARMED FORCES
OF THE PHILIPPINES; HON. EMILIE FE DELOS SANTOS, CHIEF CITY PROSECUTOR OF OLONGAPO CITY;
AND L/CPL JOSEPH SCOTT PEMBERTON, Respondent.

DECISION

LEONEN, J.:

Failure to meet the three-day notice rule for filing motions and to obtain the concurrence of the Public Prosecutor to
move for an interlocutory relief in a criminal prosecution cannot be excused by general exhortations of human rights.
This Petition fails to show any grave abuse of discretion on the part of the trial court judge. Furthermore, the accused,
while undergoing trial and before conviction, is already detained in the Philippines in compliance with the obligations
contained in the Agreement Between the Government of the United States of America and the Government of the
Republic of the Philippines Regarding the Treatment of United States Armed Forces Visiting the Philippines (Visiting
Forces Agreement).

This is a Petition for Certiorari1 under Rule 65, with prayer for the issuance of a writ of mandatory injunction filed by
Marilou S. Laude and Mesehilda S. Laude (petitioners).

On October 11, 2014, Jeffrey "Jennifer" Laude (Jennifer) was killed at the Celzone Lodge on Ramon Magsaysay Drive
in Olongapo City allegedly by 19-year-old US Marine L/CPL Joseph Scott Pemberton (Pemberton).2 On October 15,
2014, a Complaint for murder was filed by Jennifer's sibling, Marilou S. Laude, against Pemberton before the Olongapo
City Office of the City Prosecutor.3 On October 22, 2014, Pemberton was detained in Camp Aguinaldo, the general
headquarters of the Armed Forces of the Philippines.4

On December 15, 2014, the Public Prosecutor filed an Information for murder against Pemberton before the Regional
Trial Court in Olongapo City.5 The case was docketed as Case No. 865-14, and was raffled to Branch 74.6 A warrant
of arrest against Pemberton was issued on December 16, 2014.7 Pemberton surrendered personally to Judge Roline
M. Ginez-Jabalde8 (Judge Ginez-Jabalde) on December 19, 2014, and he was then arraigned.9

On the same day, Marilou S. Laude filed an Urgent Motion to Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail and a Motion to Allow Media Coverage.10 "The [M]otion was [scheduled]
for hearing on December 22, 2014, at 2 p.m."11 According to petitioners, they were only able to serve the Motion
on Pemberton's counsel through registered mail.12 In any case, they claim to have also "furnished a copy of the
[M]otion personally ... at the hearing of the [M]otion."13

On December 23, 2014, Judge Ginez-Jabalde denied petitioners' Urgent Motion for lack of merit, the

dispositive portion of which reads:14

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Wherefore, the . . . UrgentMotion [sic] to Compel the Armed Forces of the Philippines to Surrender Custody of Accused
to the Olongapo City Jail [is] denied for utter lack of merit.15 (Emphasis in the original)
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Petitioners received a copy of the Order on January 5, 2015.16 On January 9, 2015, petitioners filed a Motion for
Reconsideration.17 On February 18, 2015, Judge Ginez-Jabalde issued an Order denying petitioners' Motion for
Reconsideration for lack of merit.

In a Resolution19 dated April 21, 2015, respondents were required to file their Comment on the Petition. On June 5,
2015, public respondents, as represented by the Office of the Solicitor General, filed their (First) Motion for Extension
of Time to File Comment20 for 60 days. On the same day, Pemberton posted his Motion for Additional Time to File
Comment21 for 10 days. Pemberton filed his Comment by counsel on June 16, 2015,22 while public respondents,
through the Office of the Solicitor General, filed their Comment on September 23, 2015.23
Petitioners argue that "[Respondent Judge committed grave abuse of discretion tantamount to an excess or absence
of jurisdiction when she dismissed the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender
Custody o[f] Accused to the Olongapo City Jail [based] on mere technicalities[.]"24 In particular, they argue that the
three-day rule on motions under Rule 15, Section 425 of the 1997 Rules of Court is not absolute, and should be
liberally interpreted when a case is attended by exigent circumstances.26

Petitioners advance that the rationale behind the three-day notice rule is satisfied when there is an opportunity to
be heard, which was present in this case since Pemberton's counsel and the Public Prosecutor were present in the
hearing of the two Motions filed by petitioners.27 Petitioners allege that the court noted their attendance, and were
able to make comments during the December 22, 2014 Motion hearing.28 They assert that the rights of Pemberton
were not compromised in any way.29

Petitioners also aver that the three-day notice rule should be liberally applied due to the timing of the arrest and
arraignment.30 "The Urgent Motion was set for hearing on December 22, 2014[.]"31 This date preceded a series of
legal holidays beginning on December 24, 2014, where all the courts and government offices suspended their work.32
Petitioners point out that a "murder trial is under a distinctly special circumstance in that Paragraph 6, Article V of
the Visiting Forces Agreement. . . provides for [a] one-year trial period[,] after which the United States shall be
relieved of any obligations under said paragraph[.]"33 Petitioners had to file and set the Motion hearing at the earliest
possible date.34

Petitioners further argue that Judge Ginez-Jabalde should not have dismissed the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused to the Olongapo City Jail "considering that the Urgent
Motion raised issues that are of transcendental importance and of primordial public interest."35 Petitioners aver that
under international human rights law, in particular the International Covenant on Civil and Political Rights and the
United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, they have the right
to access to justice,36 which is "distinct from the power of the Public Prosecutors to prosecute [the] criminal case."37

Furthermore, petitioners advance that Philippine authorities ought to "have primary jurisdiction over [Respondent
Pemberton's person while [he] is being tried [in] a Philippine Court[,]"38 in accordance with

Article V, paragraph (3)(b) of the Visiting Forces Agreement,39 which states:

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3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

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(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed
by United States personnel .

..
 (Emphasis and underscoring in the original)

Petitioners argue that the custody of Pemberton must be ordered transferred to the Olongapo City Jail, considering
that the crime involved is murder, which is non-bailable.41 They aver that it is unconstitutional to refuse to put him
"in the custody of Philippine jail authorities[,]" as such refusal "undermines the Constitutional Powers of [the Court]
to hear a jurisdictional matter brought before it"42

and to promulgate rules for the practice of law.43 Petitioners argue that even though the Visiting Forces Agreement
gives the United States the "sole discretion" to decide whether to surrender custody of an accused American military
personnel to the Philippine authorities, "the rule is that . . . the Court [still] has control over any proceeding involving
a jurisdictional matter brought before it, even if it may well involve the country's relations with another foreign
power."44

As for the nonconformity of the Public Prosecutor, petitioners argue that the Public Prosecutor's refusal to sign the
Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo City
Jail rendered the requirement for conformity superfluous.45 Petitioners allege that the Public Prosecutor's act is
contrary to Department of Justice Secretary Leila M. De Lima's (Secretary De Lima) position on the matter.46 They
quote Secretary De Lima as having said the following statement in a news article dated December 17,
2014:chanRoblesvirtualLawlibrary

The Philippines will now insist on the custody (of Pemberton) now that the (case) is filed in court and especially since
the warrant of arrest has been issued," De Lima told reporters in

an ambush interview.47
 Petitioners also quoted Secretary De Lima as having stated in another news article dated
December 18,

2014 the following:

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Justice Secretary Leila De Lima stressed that Pemberton should be under the custody of Philippine authorities,
following the filing of charges.

"There is also a provision in the Visiting Forces Agreement that, in cases of extraordinary circumstances, the Philippine
government can insist on the custody and for me, there are enough such circumstances, such as cruelty and
treachery, that justified the filing of the

murder and not homicide," De Lima said.48

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The contrary manifestations made by Secretary De Lima, according to petitioners, meant that "[t]he conformity of
the Public Prosecutor . . . is a mere superfluity"49 and was meant "to deny [petitioners' 'quest for justice[.]'"50

Due to the nature of the case, petitioners pray in this Petition that procedural requirements be set aside. 51

In his Comment dated June 16, 2015, Pemberton argues that Judge Ginez-Jabalde did not commit grave abuse of
discretion in denying the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of
Accused to the Olongapo City Jail since petitioners violated the three-day notice rule and failed to secure the
conformity of the Public Prosecutor assigned to the case.52 He claims that he "was not given an opportunity to be
heard"53 on petitioners' Motion.

In his counterstatement of facts, Pemberton avers that he voluntarily surrendered to the Regional Trial Court, Branch
74, on December 19, 2014.54 On the same day, Marilou S. Laude filed an Urgent Motion to

Compel the Armed Forces of the Philippines to Surrender Custody of the Accused to the Olongapo City Jail, and
setting the Motion hearing for December 22, 2015, but did not obtain the Public Prosecutor's conformity.55 Marilou
S. Laude also failed to personally serve a copy of the Urgent Motion on Pemberton at least three days prior to the
hearing thereof.56

Pemberton further avers that on December 22, 2014, Judge Ginez-Jabalde heard the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of the Accused to the Olongapo City Jail and a Motion to
Suspend the Proceedings.57 Counsel for Pemberton was in court to attend the hearing for the Motion to Suspend the
Proceedings, but did not have knowledge of the Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of the Accused to the Olongapo City Jail filed by Marilou S. Laude.58 Counsel for Pemberton
received a copy of the Urgent Motion only "a few minutes"59 before it was to be heard.60

On December 23, 2014, Judge Ginez-Jabalde denied Marilou S. Laude's Urgent Motion to Compel the Armed Forces
of the Philippines to Surrender Custody of the Accused to the Olongapo City Jail for being devoid of merit.61 Marilou
S. Laude filed a Motion for Reconsideration on January 9, 2015,62 without conformity of the Public Prosecutor.63 On
January 20, 2015, Pemberton filed his Ad Cautelam Opposition [To Private Complainant's Motion for Reconsideration],
arguing that Judge Ginez-Jabalde correctly denied Marilou S. Laude's Urgent Motion due to the latter's "failure to
comply with settled procedure regarding hearing of motions[.]"64 Pemberton further argues that the custody over
him "rightfully remain[ed] with the [United States] authorities. . . ." He cites Section 6 of the Visiting Forces
Agreement, which provides that the "custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission
of the offense, until completion of all judicial proceedings."65

Pemberton further argues in his Comment that the presence of his counsel during the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of the Accused to the Olongapo City Jail hearing did "not equate
to an opportunity to be heard as to satisfy the purpose of the three-day notice rule."66 Citing Preysler, Jr. v. Manila
Southcoast Development Corporation,67 Cabrera v. Ng,68 and

meaningfully oppose and controvert the same."70 Even though his counsel was able to orally comment on the Urgent
Motion,71 Pemberton was deprived of any meaningful opportunity to study and oppose it,72

having been furnished a copy a few minutes before the hearing.73 Marilou S. Laude also failed to provide "justifiable
reason for . . . failure to comply with the three-day notice that would warrant a liberal construction of the rules."74

Pemberton likewise argues that Marilou S. Laude, being only the private complainant, lacks the legal personality to
file the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo
City Jail and the subsequent Motion for Reconsideration "without the conformity of the Public Prosecutor."75 Quoting
Rule 110, Section 576 of the Revised Rules of Criminal Procedure, Pemberton states that the Public Prosecutor's lack
of consent "rendered the Urgent Motion a mere scrap of paper."77 He adds that the defect is "not a mere
technicality[.]"78

Pemberton also argues that Marilou S. Laude cannot rely on the alleged statements of Secretary De Lima for the
following reasons:79 First, Secretary De Lima did not direct the Olongapo City Office of the City

Prosecutor to give its approval to the Urgent Motion and Motion for Reconsideration;80 second, Secretary De Lima
did not state that the Public Prosecutor should insist on turning over the custody of Pemberton to the Philippine
authorities.81 Neither was there any such order from Secretary De Lima.82 Petitioners'

83 claims are, therefore, without legal basis.

According to Pemberton, petitioners' use of the '"right to access to justice' under international law did not excuse
[petitioner Marilou [S. Laude] from securing the authority and conformity of the Public Prosecutor[.]" 84 He argues
that both the International Covenant on Civil and Political Rights and the United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power "refer to national or domestic legislation in affording [victims]
access to justice."85 The Rules of Court and jurisprudence have established procedures for criminal proceedings, and
these require Marilou S. Laude "to obtain authority and consent from the Public Prosecutor"86 before filing a Motion
in the ongoing criminal proceeding.87

As for the issue of custody under the Visiting Forces Agreement, Pemberton argues that there is a difference between
"jurisdiction" and "custody."88 He avers that jurisdiction is "the power and authority

[which is] why the case is being tried [in] a Philippine court."90 However, custody "pertains to [the] actual physical
control over the person of the accused[,]"91 and under the Visiting Forces Agreement,

Pemberton argues that custody shall reside with the United States Military authorities, since the Visiting Forces
Agreement expressly provides that "[t]he custody of any United States personnel . . . shall immediately reside with
[the] United States military authorities . . . from the commission of the offense until completion of all judicial
proceedings."92
Public respondents advance that Judge Ginez-Jabalde did not commit grave abuse of discretion when she denied the
Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo City
Jail.93 Public respondents, through their Comment filed by the Office of the Solicitor General, argue that "[petitioners
are not real parties in interest[.]"94 They claim that "the real party in interest is the People [of the Philippines],
represented by the public prosecutor in the lower court and by the Office of the Solicitor General ... in the Court of
Appeals and in the Supreme Court."95 While public respondents recognize that petitioners may intervene as private
offended parties, "the active conduct of. . . trial [in a criminal case] is properly the duty of the public prosecutor."96
The nonconformity of the Public Prosecutor in petitioners' Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail is fatal in light of its nature pertaining to the
place of Pemberton's confinement.97 The issue of confinement of an accused pertains to the criminal aspect of the
case and "involves the right to prosecute[,] which [is lodged] exclusively to the People[.]" 98

Referring to Rule 110, Section 5 of the Rules of Court, public respondents aver that the requirement for motions to
be "filed in the name of and under the authority of the public prosecutor"99 is not a mere technical requirement, but
is part of "the essential, inherent, and exclusive power of the State to prosecute criminals[.]"100 Public respondents
counter petitioners' claim that the Public Prosecutor's approval is superfluous given the alleged position of Secretary
De Lima in the newspaper articles. Citing Feria v. Court of Appeals, public respondents argue that newspaper articles
are "hearsay evidence, twice removed"101 and are "inadmissible" for having no probative value, "whether objected
to or not."102

As for the three-day notice rule under the Rules of Court, public respondents argue that petitioners' failure to comply
cannot be excused in light of the rule's purpose, that is, for the Motion's adverse party not to be surprised, granting
one sufficient time to study the Motion and be able to meet the arguments contained in it.103

Public respondents argue that while the Visiting Forces Agreement "grants primary jurisdiction to Philippine
authorities"104 in this case, Pemberton's handover specifically to the Olongapo City Jail is unnecessary.105 The
Visiting Forces Agreement does not specify the place of an accused American personnel's confinement. The issue of
custody is thus "best left to the discretion of the trial court."106 According to public respondents, for so long as the
present arrangement neither renders it difficult for Pemberton to appear in court when he is required nor impairs
Judge Ginez-Jabalde's authority to try the case, the trial court may validly decide for Pemberton to remain where he
currently is.107

Lastly, public respondents maintain that petitioners are not entitled to a mandatory injunction since they have no
"clear and unmistakable right to the transfer of [respondent Pemberton] from Camp Aguinaldo to the Olongapo City
Jail."108 They underscore that "petitioners are private offended parties[,] not the real party in interest in [this]
criminal case[.]"109

We dismiss the Petition.

I
 The failure of petitioners to comply with the three-day notice rule is unjustified.

Rule 15, Section 4 of the Rules of Court clearly makes it a mandatory rule that the adverse party be given notice of
hearing on the motion at least three days prior.

Failure to comply with this notice requirement renders the motion defective consistent with protecting the

adverse party's right to procedural due process.110 In Jehan Shipping Corporation:111

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As an integral component of procedural due process, the three-day notice required by the Rules is not intended for
the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon
the adverse party, who must be given time to study and meet the arguments in the motion before a resolution by
the court. Principles of natural justice demand that the right of a party should not be affected without giving it an
opportunity to be heard.112 (Emphasis supplied, citations omitted)

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While the general rule is that a motion that fails to comply with the requirements of Rule 15 is a mere scrap of paper,
an exception may be made and the motion may still be acted upon by the court, provided doing so will neither cause
prejudice to the other party nor violate his or her due process rights.113 The adverse party must be given time to
study the motion in order to enable him or her to prepare properly and engage the arguments of the movant.114 In
this case, the general rule must apply because Pemberton was not given sufficient time to study petitioners' Motion,
thereby depriving him of his right to procedural due process.

Petitioners admit that they personally furnished Pemberton a copy of the Urgent Motion to Compel the Armed Forces
of the Philippines to Surrender Custody of Accused to the Olongapo City Jail only during the hearing.115 They attempt
to elude the consequences of this belated notice by arguing that they also served a copy of the Motion by registered
mail on Pemberton's counsel.116 They also attempt to underscore the urgency of the Motion by making a reference
to the Christmas season and the "series of legal holidays"117 where courts would be closed.118 To compound their
obfuscation, petitioners claim that the hearing held on December 22, 2014, attended by Pemberton's counsel
sufficiently satisfied the rationale of the three-day notice rule.

These circumstances taken together do not cure the Motion's deficiencies. Even granting that Pemberton's counsel
was able to comment on the motion orally during the hearing, which incidentally

119
 was set for another incident, it cannot be said that Pemberton was able to study and prepare for his

counterarguments to the issues raised in the Motion. Judge Ginez-Jabalde was correct to deny the Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo City Jail based on
noncompliance of procedural rules. To rule otherwise would be to prejudice Pemberton's rights as an accused.

II

Petitioners also argue that the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of
Accused to the Olongapo City Jail is an assertion of their right to access to justice as recognized by international law
and the 1987 Constitution. They justify the separate filing of the Motion as a right granted by Article 2, paragraph
(3) of the International Covenant on Civil and Political Rights,120 independent of "the power of the Public Prosecutors
to prosecute [a] criminal case."121

Article 2, paragraph (3) of the International Covenant on Civil and Political Rights states:

3. Each State Party to the present Covenant undertakes:

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(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority provided for by the legal system of the
State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when

granted.122

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There is no need to discuss whether this provision has attained customary status, since under treaty law, the
Philippines, as a State Party,123 is obligated to comply with its obligations under the International
Covenant on Civil and Political Rights.124 However, petitioners went too far in their interpretation, ignoring
completely the nature of the obligation contemplated by the provision in an attempt to justify their failure to comply
with a domestic procedural rule aimed to protect a human right in a proceeding, albeit that of the adverse party.

On March 29, 2004, the United Nations Human Rights Committee issued General Comment No. 31, 125 which
pertained to the nature of the general legal obligations imposed by the International Covenant on Civil and Political
Rights on State Parties. On Article 2, paragraph (3), the General Comment states:chanRoblesvirtualLawlibrary

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights[,] States
Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights.
Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories
of person, including in particular children. The Committee attaches importance to States Parties' establishing
appropriate judicial and administrative mechanisms for addressing claims of rights violations under
domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be
effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application
of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application
of national law. Administrative mechanisms are particularly required to give effect to the general obligation to
investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies.
National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State
Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.
Cessation of an ongoing violation is an essential element of the right to an effective remedy.

16. Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant
rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the
obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged.
In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee
considers that the Covenant generally entails appropriate compensation. The Committee notes that, where
appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies,
public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to
justice the perpetrators of human rights violations.126 (Emphasis supplied)

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The obligation contemplated by Article 2, paragraph (3) is for the State Party to establish a system of accessible and
effective remedies through judicial and administrative mechanisms. The present trial of Pemberton, to which
petitioner, Marilou S. Laude, is included as a private complainant, indicates that there is a legal system of redress
for violated rights. That petitioners chose to act on their own, in total disregard of the mechanism for criminal
proceedings established by this court, should not be tolerated under the guise of a claim to justice. This is especially
in light of petitioners' decision to furnish the accused in the case a copy of her Motion only during the hearing.
Upholding human rights pertaining to access to justice cannot be eschewed to rectify an important procedural
deficiency that was not difficult to comply with. Human rights are not a monopoly of petitioners. The accused also
enjoys the protection of these rights.

III

The conformity of the Public Prosecutor to the Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail is not a mere "superfluity."127 In

Jimenez v. Sorongon,128 this court held that in criminal cases, the People is the real party in interest, which means
allowing a private complainant to pursue a criminal action on his own is a rare

exception:129

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Procedural law basically mandates that "[ajll criminal actions commenced by complaint or by information
shall be prosecuted under the direction and control of a public prosecutor." In appeals of criminal cases
before the CA and before this Court, the OSG is the appellate counsel of the People. . . .

....
The People is the real party in interest in a criminal case and only the OSG can represent the People in
criminal proceedings pending in the CA or in this Court. This ruling has been repeatedly stressed in
several cases and continues to be the controlling doctrine.

While there may be rare occasions when the offended party may be allowed to pursue the criminal action
on his own behalf (as when there is a denial of due process), this exceptional circumstance does not
apply in the present case.

In this case, the petitioner has no legal personality to assail the dismissal of the criminal case since the main issue
raised by the petitioner involved the criminal aspect of the case, i.e., the existence of probable cause. The petitioner
did not appeal to protect his alleged pecuniary interest as an offended party of the crime, but to cause the
reinstatement of the criminal action against the respondents. This involves the right to prosecute which pertains
exclusively to the People, as represented by the OSG.130 (Emphasis supplied, citations omitted)cralawlawlibrary

In this
 alleged grave abuse of discretion of the Public Prosecutor was neither clearly pleaded nor argued. The duty
and authority to prosecute the criminal aspects of this case, including the custody issue, are duly lodged in the Public
Prosecutor. Her refusal to give her conforme to the Motion is an act well within the bounds of her position. That
petitioners used as bases newspaper articles for claiming that the Public Prosecutor acted contrary to the position of
Secretary De Lima cannot be given weight. Public respondents are correct in asserting that the proper remedy would
have been for petitioners to have the act reversed by Secretary De Lima through proper legal venues.

IV

Finally, petitioners argue that the Visiting Forces Agreement should be declared "unconstitutional insofar

as it impairs the . . . power of the Supreme Court[.]"131 They advance this argument in the context of their Motion
to place Pemberton under the custody of Philippine authorities while the case is being

case, petitioners have not shown why the Motion may be allowed to fall under the exception. The

tried,132 with their prayer in this Petition phrased thus:

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(b) Declare the VFA unconstitutional insofar as it impairs the constitutional power of the Supreme Court to promulgate
rules for practice before it, including the Rules of Criminal

Procedure[.]133

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The constitutionality of an official act may be the subject of judicial review, provided the matter is not

raised collaterally. In Planters Products, Inc. v. Fertiphil Corporation:134

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Judicial review of official acts on the ground of unconstitutionality may be sought or availed of through any of the
actions cognizable by courts of justice, not necessarily in a suit for declaratory relief. . . The constitutional issue,
however, (a) must be properly raised and presented in the case, and (b) its resolution is necessary to a
determination of the case, i.e., the issue of constitutionality must be the very lis mota

presented.135 (Emphasis supplied, citation omitted)

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The constitutionality of the Visiting Forces Agreement is not the lis mota of this Petition. Petitioners started their
Petition with a claim that their right to access to justice was violated, but ended it with a prayer for a declaration of
the Visiting Forces Agreement's unconstitutionality. They attempt to create the connection between the two by
asserting that the Visiting Forces Agreement prevents the transfer of Pemberton to Olongapo City Jail, which allegedly
is tantamount to the impairment of this court's First, this Petition is not the proper venue to rule on the issue of
whether the Visiting Forces Agreement transgresses the judicial authority of this court to promulgate rules pertaining
to criminal cases. Second, the issues of criminal jurisdiction and custody during trial as contained in the Visiting
Forces Agreement

were discussed in Nicolas v. Secretary Romulo, et al:136

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The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by
its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines,
the following rules apply:

Article V Criminal Jurisdiction xxx xxx xxx

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so request, from the commission of the offense until completion
of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the
Philippine Government shall present its position to the United States Government regarding custody, which the United
States Government shall take into full account. In the event Philippine judicial proceedings are not completed within
one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not
include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for
the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]).
They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of
procedure for that accused, which also violates the equal protection clause of the Constitution (Art. Ill, Sec. 1. [sic]).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different treatment
of a member of a foreign military armed forces allowed to enter our territory and all other accused.

The rule in international law is that a foreign armed forces allowed to enter one's territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units
around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their
bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure
is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws
(including rules of procedure) of one State do not extend or apply — except to the extent agreed upon —
to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as
visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to long- recognized subjects of such immunity like
Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to
enter another State's territory. On the contrary, the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it
comes to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the
rule that governs is the following provision of the VFA:

Article V Criminal Jurisdiction xxx xxx xxx

Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving
sentences in the Philippines shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial and
detention after conviction, because they provided for a specific arrangement to cover detention. And this
specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on
by authorities of both parties, but also that the detention shall be "by Philippine authorities."137
(Emphasis supplied, citations omitted)

In any case, Pemberton is confined, while undergoing trial, in Camp Aguinaldo, which by petitioners' own description
is the "General Head Quarters of the Armed Forces of the Philippines[.] "138Their claim that the detention facility is
under the "control, supervisionfj and jurisdiction of American military authorities"139is not substantiated.

Petitioners' prayer for the issuance of a writ of mandatory injunction to compel public respondents to turn over the
custody of Pemberton "from American military authorities to the OLONGAPO CITY JAIL" 140 is

likewise denied for lack of merit. In Semirara Coal Corporation v. HGL Development Corporation:141

chanroblesvirtuallawlibrary

It is likewise established that a writ of mandatory injunction is granted upon a showing that (a) the invasion
of the right is material and substantial; (b) the right of complainant is clear and unmistakable; and (c)
there is an urgent and permanent necessity for the writ to prevent serious damage.142 (Emphasis supplied,
citation omitted)cralawlawlibrary

Nowhere in their Petition did petitioners discuss the basis for their claim that they are entitled to the sought writ, let
alone mention it in their arguments. This court cannot consider the issuance of a writ of mandatory injunction or a
temporary restraining order without any legal and factual basis.

Besides, considering the extent of the scope of this court's power to issue a temporary restraining order, prayers for
the issuance of a writ of mandatory injunction is usually unnecessary.

WHEREFORE, premises considered, the Petition for Certiorari is DISMISSED for lack of grave abuse of discretion
resulting in lack or excess of jurisdiction. The prayer for the issuance of a writ of mandatory injunction is likewise
DENIED for lack of merit.

SO ORDERED.