You are on page 1of 18

ANGELITO P.

MAGNO, Petitioner,

G.R. No. 171542 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, VILLARAMA, JR., and SERENO, JJ.

- versus -

PEOPLE OF THE PHILIPPINES, MICHAEL MONSOD, ESTHER LUZ MAE GREGORIO, GIAN CARLO CAJOLES, NENETTE CASTILLON, Promulgated: DONATO ENABE and ALFIE FERNANDEZ, Respondents. April 6, 2011 x-----------------------------------------------------------------------------------------x DECISION BRION, J.: Through a petition for review on certiorari,[1] petitioner Angelito P. Magno seeks the reversal of the Amended Decision of the Court of Appeals (CA), dated September 26, 2005[2] in People of the Philippines, et al. v. H on. Augustine A. Vestil, Presiding Judge, RTC Mandaue City, Br. 56, et al. (docketed as CA-G.R. SP No. 79809), and its Resolution dated February 6, 2006[3] denying respondents motion for reconsideration.[4] The assailed rulings denied the petition for certiorari filed under Rule 65 of the Rules of Court and upheld the ruling[5] of the Regional Trial Court (RTC) of Mandaue City, which precluded Atty. Adelino B. Sitoy from acting as private prosecutor in Criminal Case No. DU-10123.[6] THE FACTUAL ANTECEDENTS On May 14, 2003, the Office of the Ombudsman filed an information for multiple frustrated murder and double attempted murder against several accused, including Magno, who were public officers working under the National Bureau of Investigation.[7] During the scheduled arraignment, Magno, in open court, objected to the formal appearance and authority of Atty. Sitoy, who was there as private prosecutor to prosecute the case for and on behalf of the Office of the Ombudsman.[8] The oral objection was reduced to writing on July 21, 2003 when Magno filed an opposition[9] before Branch 56 of the RTC of Mandaue City, citing the provisions of Section 31 of Republic Act (RA) No. 6770.[10] The Office of the Ombudsman submitted its comment,[11] while the accused submitted their joint opposition.[12] The respondents likewise submitted their comments to the opposition of the other co-accused.[13] On September 25, 2003, the RTC issued an Order, ruling that the Ombudsman is proper, legal and authorized entity to prosecute this case to the exclusion of any other entity/person other than those authorized under R.A. 6770.[14] In open court, the Office of the Ombudsman moved for the reconsideration of the Order, which the RTC later denied in its October 1, 2003 Order.[15] Proceedings before the CA On October 13, 2003, the respondents, through the Ombudsman for the Visayas and Atty. Sitoy, filed a petition for certiorari before the CA.[16] They contended that the RTC committed a grave abuse of discretion in prohibiting the appearance of Atty. Sitoy as counsel for the private offended parties, as the Rules of Court expressly provides that a private offended party may intervene, by counsel, in the prosecution of offenses.[17] Magno, in his comment[18] filed on December 15, 2003, insisted that what he questioned before the RTC was the appearance and authority of the private prosecutor to prosecute the case in behalf of the Ombudsman.[19] He stressed that while the Office of the Ombudsman can designate prosecutors to assist in the prosecution of criminal cases, its authority in appointing, deputizing or

1|Page

authorizing prosecutors to prosecute cases is confined only to fiscals, state prosecutors and government lawyers. It does not extend to private practitioners/private prosecutors.[20] He further stressed that while the Order of the RTC states that the Office of the Ombudsman is the proper legal and authorized entity to prosecute the case, it did not affect the right to intervene personally, as the Office of the Ombudsman can take the cudgels for the private respondents in prosecuting the civil aspect of the case.[21] On February 16, 2005, the CA, in its original Decision, declared that the private prosecutor may appear for the petitioner in the case, but only insofar as the prosecution of the civil aspect of the case is concerned.[22] The respondents moved for the reconsideration[23] of the CA decision. On September 26, 2005, the CA amended its decision,[24] ruling that the private prosecutor may appear for the petitioner in Criminal Case No. DU-10123 to intervene in the prosecution of the offense charged in collaboration with any lawyer deputized by the Ombudsman to prosecute the case.[25] Failing to obtain a reconsideration[26] of the amended CA decision, Magno elevated the dispute to this Court through the present petition for review on certiorari[27] filed under Rule 45 of the Rules of Procedure. PETITIONERS ARGUMENTS Magno submits that the CA did not have jurisdiction to entertain the petition for certiorari; the power to hear and decide that question is with the Sandiganbayan.[28] To support this contention, Magno invokes Engr. Teodoto B. Abbot v. Hon. Judge Hilario I. Mapayo, etc., et al.[29] where the Court held that the Sandiganbayan has the exclusive power to issue petitions for certiorari in aid of its appellate jurisdiction.[30] Even if the Court were to set aside this procedural lapse, Magno adds, the private prosecutor cannot be allowed to intervene for the respondents as it would violate Section 31 of RA No. 6770.[31] Section 31 limits the Ombudsmans prerogative to designate prosecutors to fiscals, state prosecutors and government lawyers. It does not, Magno maintains, allow the Ombudsman to deputize private practitioners to prosecute cases for and on behalf of the Office of the Ombudsman.[32] RESPONDENTS ARGUMENTS The Office of the Ombudsman, through the Office of the Special Prosecutor, submitted its memorandum on February 8, 2008. Substantively, the Ombudsman maintains that Atty. Sitoy may intervene in the case pursuant to Section 16, Rule 110 of the Rules of Court, which reads: Sec. 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. The Ombudsman maintains that Section 31 of RA No. 6770 did not amend Section 16, Rule 110 of the Rules of Court.[33] Section 31 merely allows the Ombudsman to designate and deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution in certain cases.[34] The Ombudsman opines that the two provisions of law are not diametrically opposed nor in conflict,[35] as a private prosecutor may appear for the private offended complainants in the prosecution of an offense independent of the exclusive right of the Ombudsman to deputize.[36] The Ombudsman, however, did not address the contention that the Sandiganbayan, not the CA, has appellate jurisdiction over the RTC in this case. THE COURTS RULING We resolve to grant the petition. The Sandiganbayan, not the CA, has appellate jurisdiction over the RTCs decision not to allow Atty. Sitoy to prosecut e the case on behalf of the Ombudsman Presidential Decree (PD) No. 1606 created the Sandiganbayan. Section 4 thereof establishes the Sandiganbayans jurisdiction: Section 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corruption Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, of the Revised Penal Code, where one or more of the accused are officials occupying the

2|Page

following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: xxxx B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or to appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had theretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned." [emphasis and underscoring supplied] This is clear: the Sandiganbayan has exclusive appellate jurisdiction over resolutions issued by RTCs in the exercise of their own original jurisdiction or of their appellate jurisdiction. We reaffirmed this rule in Abbot.[37] In that case, petitioner Engr. Abbot filed a petition for certiorari before the CA, claiming that the RTC gravely abused its discretion for not dismissing the information for Malversation thru Falsification of Public Document. The CA refused to take cognizance of the case, holding that the Sandiganbayan has jurisdiction over the petition. Recognizing the amendments made to PD No. 1606 by RA No. 7975,[38] we sustained the CAs position since Section 4 of PD No. 1606 has expand ed the Sandiganbayans jurisdiction to include petitions for mandamus, prohibition, certiorari, habeas corpus, injunction, and other ancillary writs and processes in aid of its appellate jurisdiction.[39] In the present case, the CA erred when it took cognizance of the petition for certiorari filed by Magno. While it is true that the interlocutory order issued by the RTC is reviewable by certiorari, the same was incorrectly filed with the CA. Magno should have filed the petition for certiorari with the Sandiganbayan, which has exclusive appellate jurisdiction over the RTC since the accused are public officials charged of committing crimes in their capacity as Investigators of the National Bureau of Investigation.[40] The CA should have dismissed the petition outright. Since it acted without authority, we overrule the September 26, 2005 Amended Decision of the CA and the subsequent denial of Magnos motions for reconsideration. Jurisdiction is conferred by law, and

3|Page

the CAs judgment, issued without jurisdiction, is void. There is no rule in procedural law as basic as the precept that jurisdiction is conferred by law,[41] and any judgment, order or resolution issued without it is void[42] and cannot be given any effect.[43] This rule applies even if the issue on jurisdiction was raised for the first time on appeal or even after final judgment.[44] We reiterated and clarified the rule further in Felicitas M. Machado, et al. v. Ricardo L. Gatdula, et al.,[45] as follows: Jurisdiction over a subject matter is conferred by law and not by the parties action or conduct. Estoppel generally does not confer jurisdiction over a cause of action to a tribunal where none, by law, exists. In Lozon v. NLRC, we declared that: Lack of jurisdiction over the subject matter of the suit is yet another matter. Whenever it appears that the court has no jurisdiction over the subject matter, the action shall be dismissed. This defense may be interposed at any time, during appeal or even after final judgment. Such is understandable, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to themselves determine or conveniently set aside. We note that Magno had already raised in his supplemental motion for reconsideration before the CA[46] the ground of lack of jurisdiction before the CAs Decision became final. The CA did not even consider this submission, choosing instead to brush it aside for its alleged failure to raise new or substantial grounds for reconsideration.[47] Clearly, however, its lack of jurisdiction is a new and substantial argument that the CA should have passed upon. The Office of the Ombudsman cannot rely on the principle of estoppel to cure the jurisdictional defect of its petition before the CA The Ombudsman cannot rely on the principle of estoppel in this case since Magno raised the issue of jurisdiction before the CAs decision became final. Further, even if the issue had been raised only on appeal to this Court, the CAs lack of jurisdiction could still not be cured. In Machado,[48] citing People of the Philippin es v. Rosalina Casiano,[49] we held: In People v. Casiano, this Court, on the issue of estoppel, held: The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferre d by consent of the parties or by estoppel. However if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. WHEREFORE, we DENY the petitioners petition for review on certiorari, and DECLARE the Amended Decision of the Court of Appeals in CA-G.R. SP No. 79809, promulgated on September 26, 2005, as well as its Resolution of February 6, 2006, NULL AND VOID for having been issued without jurisdiction. The respondents are hereby given fifteen (15) days from the finality of this Decision within which to seek recourse from the Sandiganbayan. No costs. SO ORDERED.

JOSE ANTONIO C. LEVISTE, Petitioner, - versus -

4|Page

HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS, Respondents. G.R. No. 182677 Present: CARPIO MORALES, Chairperson, NACHURA,* BERSAMIN, ABAD,** and VILLARAMA, JR., JJ. Promulgated: August 3, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the August 30, 2007 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 courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion for reconsideration, respectively. 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 petitioners arraignment and allo wing 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 prosecutors recommendation on the proper offense until after the appellate court resolves his application for injunctive reliefs, or alternatively, to grant him time to comment on the prosecutors recommendation and thereafter set a hearing for the judicial determination of probable cause.[10] Petitioner also separately moved for the inhibition of Judge Alameda with prayer to defer action on the admission of the Amended Information.[11] The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 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 petitioners petition, hence, his present petition, arguing that:

5|Page

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES OF COURT[;] RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE COURT (sic); [AND] CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONERS MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE.[15] (emphasis in the original omitted) Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner refused to plead, drawing the trial court to enter a plea of not guilty for him. Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex Abundanti 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. The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner under the Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of homicide, sentencing him to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R. CR No. 32159, during the pendency of which he filed an urgent application for admission to bail pending appeal. The appellate court denied petitioners application which this Court, in G.R. No. 189122, affirmed by Decision of March 17, 2010. The Office of the Solicitor General (OSG) later argued that the present petition had been rendered moot since the presentation of evidence, wherein petitioner actively participated, had been concluded.[18] Waiver on the part of the accused must be distinguished from mootness of the petition, for in the present case, petitioner did not, by his active participation in the trial, waive his stated objections. Section 26, Rule 114 of the Rules of Court provides: SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the charge against him, the validity of the admission of the Amended Information, and the legality of his arrest under the Amended Information, as he vigorously raised them prior to his arraignment. During the arraignment on March 21, 2007, petitioner refused to enter his plea since the issues he raised were still pending resolution by the appellate court, thus prompting the trial court to enter a plea of not guilty for him. The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack of or irregular preliminary investigation applies only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto.[19] There must be clear and convincing proof that petitioner had an actual intention to relinquish his right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.[20] From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of petitioner to preclude him from obtaining a definite resolution of the objections he so timely invoked. Other than its allegation of active participation, the OSG offered no clear and convincing proof that petitioners participation in the trial was unconditional with the intent to voluntarily and unequi vocally abandon his petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of the present petition.[21] Whatever delay arising from petitioners availment of remedies against the trial courts Orders cannot be imputed to petition er to operate as a valid waiver on his part. Neither can the non-issuance of a writ of preliminary injunction be deemed as a voluntary relinquishment of petitioners principal prayer. The non-issuance of such injunctive relief only means that the appellate court did not

6|Page

preliminarily find any exception[22] to the long-standing doctrine that injunction will not lie to enjoin a criminal prosecution.[23] Consequently, the trial of the case took its course. The petition is now moot, however, in view of the trial courts rendition of judgment. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.[24] The judgment convicting petitioner of homicide under the Amended Information for murder operates as a supervening event that mooted the present petition. Assuming that there is ground[25] to annul the finding of probable cause for murder, there is no practical use or value in abrogating the concluded proceedings and retrying the case under the original Information for homicide just to arrive, more likely or even definitely, at the same conviction of homicide. Mootness would have also set in had petitioner been convicted of murder, for proof beyond reasonable doubt, which is much higher than probable cause, would have been established in that instance. Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to resolve the legal issues in order to formulate controlling principles to guide the bench, bar and public.[26] In the present case, there is compelling reason to clarify the remedies available before and after the filing of an information in cases subject of inquest. After going over into the substance of the petition and the assailed issuances, the Court finds no reversible error on the part of the appellate court in finding no grave abuse of discretion in the issuance of the four trial court Orders. In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to seek from the trial court an investigation or reevaluation of the case except through a petition for review before the Department of Justice (DOJ). In cases when an accused is arrested without a warrant, petitioner contends that the remedy of preliminary investigation belongs only to the accused. The contention lacks merit. Section 6,[27] Rule 112 of the Rules of Court reads: When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (underscoring supplied) A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine.[28] As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant[29] involving such type of offense, so long as an inquest, where available, has been conducted.[30] Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court.[31] It is imperative to first take a closer look at the predicament of both the arrested person and the private complainant during the brief period of inquest, to grasp the respective remedies available to them before and after the filing of a complaint or information in court. BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may proceed in coordinating with the arresting officer and the inquest officer during the latters conduct of inquest. Meanwhile, the arrested person has the opt ion 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.

7|Page

The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested person.[33] Notably, the rules on inquest do not provide for a motion for reconsideration.[34] Contrary to petitioners position that private complainant should have appealed to the DOJ Secretary, such remedy is not imme diately 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 may prescribe.[35] The rule referred to is the 2000 National Prosecution Service Rule on Appeal,[36] Section 1 of w hich provides that the Rule shall apply to appeals from resolutions x x x in cases subject of preliminary investigation/ reinvestigation. In cases subject of inquest, therefore, the private party should first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary. In case the inquest proceedings yield no probable cause, the private complainant may pursue the case through the regular course of a preliminary investigation. ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with another opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The Rules of Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke, as respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation. The Court holds that the private complainant can move for reinvestigation, subject to and in light of the ensuing disquisition. All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the public prosecutor.[37] The private complainant in a criminal case is merely a witness and not a party to the case and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court, the proper party for that being the public prosecutor who has the control of the prosecution of the case.[38] Thus, in cases where the private complainant is allowed to intervene by counsel in the criminal action,[39] and is granted the authority to prosecute,[40] the private complainant, by counsel and with the conformity of the public prosecutor, can file a motion for reinvestigation. In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must examine the Information vis --vis the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and to ensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures[.][42] (emphasis and underscoring supplied) The prosecution of crimes appertains to the executive department of the government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors.[43] The prosecutions discretion is not boundless or infinite, however.[44] The standing principle is that once an information i s filed in court, any remedial measure such as a reinvestigation must be addressed to the sound discretion of the court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in one case that: The rule is now well settled that once a complaint or information is filed in court, any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in court, he cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case had already been brought therein any disposition the prosecutor may deem proper thereafter should be addressed to the court for its consideration and approval. The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to due process of law. xxxx

8|Page

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 prosecutions motion for reinvestigation, the former is deemed to have deferred to the author ity of the prosecutorial arm of the Government. Having brought the case back to the drawing board, the prosecution is thus equipped with discretion wide and far reaching regarding the disposition thereof,[48] subject to the trial courts approval of the resulting proposed course of action. Since a reinvestigation may entail a modification of the criminal information as what happened in the present case, the Courts holding is bolstered by the rule on amendment of an information under Section 14, Rule 110 of the Rules of Court: A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 11, Rule 119, provided the accused would not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (emphasis supplied) In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information may be made without leave of court.[49] After the entry of a plea, only a formal amendment may be made but with leave of court and only if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused.[50] It must be clarified though that not all defects in an information are curable by amendment prior to entry of plea. An information which is void ab initio cannot be amended to obviate a ground for quashal.[51] An amendment which operates to vest jurisdiction upon the trial court is likewise impermissible.[52]

Considering the general rule that an information may be amended even in substance and even without leave of court at any time before entry of plea, does it mean that the conduct of a reinvestigation at that stage is a mere superfluity? It is not. Any remedial measure springing from the reinvestigation be it a complete disposition or an intermediate 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.

9|Page

The Court answers in the affirmative. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. The following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecutions theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged. The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance.[55] (emphasis and underscoring supplied) Matalam adds that the mere fact that the two charges are related does not necessarily or automatically deprive the accused of his right to another preliminary investigation. Notatu dignum is the fact that both the original Information and the amended Information in Matalam were similarly charging the accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. In one case,[56] it was squarely held that the amendment of the Information from homicide to murder is one of substance with very serious consequences.[57] The amendment involved in the present case consists of additional averments of the circumstances of treachery, evident premeditation, and cruelty, which qualify the offense charged from homicide to murder. It being a new and material element of the offense, petitioner should be given the chance to adduce evidence on the matter. Not being merely clarificatory, the amendment essentially varies the prosecutions original theory of the case and certainly affects not just the form but the we ight of defense to be mustered by petitioner. 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 complainants evidence was accorded him.[62] In his second assignment of error, petitioner basically assails the hurried issuance of the last two assailed RTC Orders despite the pendency before the appellate court of the petition for certiorari challenging the first two trial court Orders allowing a reinvestigation. The Rules categorically state that the petition shall not interrupt the course of the principal case unless a temporary retraining order or a writ of preliminary injunction has been issued.[63] The appellate court, by Resolution of February 15, 2007,[64] denied petitioners application for a temporary restraining order and writ of preliminary injunctio n. 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 postinquest remedy that was available after the reinvestigation and which could have suspended the arraignment.[66] Regarding petitioners protestations of haste, suffice to state that the pace in resolving incidents of the case is not per se an indication of bias. In Santos-Concio v. Department of Justice,[67] the Court held:

10 | P a g e

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For ones prompt dispatch may be anothers undue haste. The orderly administration of justice rem ains as the paramount and constant consideration, with particular regard of the circumstances peculiar to each case. The presumption of regularity includes the public officers official actuations in all phases of work. Consistent with such presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of days or numerical calculation. This, petitioners failed to discharge. The swift completion of the Investigating Panels initial task cannot b e relegated as shoddy or shady without discounting the presumably regular performance of not just one but five state prosecutors.[68] There is no ground for petitioners protestations against the DOJ Secretarys sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case[69] and the latters conformity to the motion for reinvestigation. In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the reinvestigation or preliminary investigation.[70] There is a hierarchy of officials in the prosecutory arm of the executive branch headed by the Secretary of Justice[71] who is vested with the prerogative to appoint a special prosecutor or designate an acting prosecutor to handle a particular case, which broad power of control has been recognized by jurisprudence.[72] As for the trial courts ignoring the DOJ Secretarys uncontested statements to the media which aired his opinion that if the assailant merely intended to maim and not to kill the victim, one bullet would have sufficed the DOJ Secretary reportedly uttered that the filing of the case of homicide against ano against Leviste lintek naman eh I told you to watch over that case there should b e a report about the ballistics, about the paraffin, etc., then thats not a complete investigation, thats why you should use that as a ground no abuse of discretion, much less a grave one, can be imputed to it. The statements of the DOJ Secretary do not evince a determination to file the Information even in the absence of probable cause.[73] On the contrary, the remarks merely underscored the importance of securing basic investigative reports to suppor t 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 pres ented 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 suff icient circumstances that require further inquiry. That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not affect the prior determination of probable cause because, as the appellate court correctly stated, the standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause which is sufficient to initiate a criminal case.[76] In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a hearing for judicial determination of probable cause, considering the lack of substantial or material new evidence adduced during the reinvestigation. Petitioners argument is specious. There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether that function has been correctly discharged by the public prosecutor, i.e., whether he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.[77] The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.[78] Paragraph (a), Section 5,[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 and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.[80]

11 | P a g e

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. But the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall (1) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination of the existence of probable cause; and (2) if he is not satisfied that probable cause exists, he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.[81] (emphasis and underscoring supplied) The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of arrest of the accused before any warrant may be issued.[82] Petitioner thus cannot, as a matter of right, insist on a hearing for judicial determination of probable cause. Certainly, petitioner cannot determine beforehand how cursory or exhaustive the [judge's] examination of the records should be [since t]he extent of the judges examination depends on the exercise of his sound discretion as the circumstances of the case require.[83] In one case, the Court emphatically stated: The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine the presence or absence of probable cause within such periods. The Sandiganbayans determination of probable cause is made ex pa rte and is summary in nature, not adversarial. The Judge should not be stymied and distracted from his determination of probable cause by needless motions for determination of probable cause filed by the accused.[84] (emphasis and underscoring supplied) Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that would qualify the crime from homicide to murder. The allegation of lack of substantial or material new evidence deserves no credence, because new pieces of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no new matter or evidence was presented during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor to review and re-evaluate its findings and the evidence already submitted.[85] Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition for review on certiorari since this Court is not a trier of facts. The Court cannot thus review the evidence adduced by the parties on the issue of the absence or presence of probable cause, as there exists no exceptional circumstances to warrant a factual review.[86] In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions and issues beyond its competence, such as an error of judgment.[87] The courts duty in the pertinent case is confined to determining whether the executive and judici al 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]

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.

GEN. ALEXANDER B. YANO, Chief of Staff, Armed Forces of the Philippines, LT. GEN. VICTOR S. IBRADO, Commanding General, Philippine Army, and MAJ. GEN. RALPH A. VILLANUEVA, Commander, 7th Infantry Division, Philippine Army, Petitioners,

12 | P a g e

- versus -

CLEOFAS SANCHEZ and MARCIANA MEDINA, Respondents. G.R. No. 186640 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: February 11, 2010 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: On December 28, 2007, respondent Cleofas Sanchez (Cleofas) filed before this Court a petition docketed as G.R. No. 180839 for issuance of a Writ of Amparo with Motion for Production and Inspection directed against Gen. Hermogenes Esperon (Gen. Esperon), the then Chief of Staff of the Armed Forces of the Philippines (AFP). On January 2, 2008, the Court[1] resolved to issue a Writ of Amparo and ordered Gen. Esperon to make a verified return of the writ before Court of Appeals Justice Edgardo Sundiam, who was ordered to hear and decide the case which was eventually redocketed as CA-G.R. SP No. 00010 WR/A. Cleofas amended her petition[2] on January 14, 2008 to include herein co-respondent Marciana Medina (Marciana) as therein additional petitioner, and to implead other military officers[3] including Lt. Ali Sumangil (Lt. Sumangil) and Sgt. Gil Villalobos[4] (Sgt. Villalobos) as therein additional respondents. In the Amended Petition, Cleofas and Marciana (respondents) alleged that on September 17, 2006 at around 8:00 p.m., their respective sons Nicolas Sanchez and Heherson Medina were catching frogs outside their home in Sitio Dalin, Barangay Bueno, Capas, Tarlac; that at around 1:00 a.m. of the next day, September 18, 2006, Nicolas wives Lourdez and Rosalie Sanchez, who were then at home, heard gunshots and saw armed men in soldiers uniforms passing by; that at around 4:00 a.m. of the same day, Lourdez and Rosalie went out to check on Nicolas and Heherson but only saw their caps, slippers, pana and airgun for catching frogs, as well as bloodstains; and that they immediately reported the matter to the barangay officials. Respondents narrated that they, together with other family members, proceeded on September 19, 2006 to the Capas Station of the Philippine National Police (PNP). Accompanied by officials of the National Commission on Indigenous Peoples (NCIP),[5] they also tried to search for Nicolas and Heherson at the Camp Detachment of the 71st Infantry Batallion of the Philippine Army (Army) in

13 | P a g e

Barangay Burgos, San Jose, Tarlac, and at the Camp of the Bravo Company of the Armys 71st Infantry Batallion inside Hacienda Luisita, Tarlac City, but to no avail. Furthermore, respondents alleged that Josephine Galang Victoria, also known as Antonina Galang (Josephine), niece of a neighbor, later informed them that she had seen two men inside Camp Servillano Aquino of the Northern Luzon Command (Nolcom) in San Miguel, Tarlac City on September 21, 2006, whom Josephine later identified as Nicolas and Heherson (the victims) after respondents had shown her their photographs; and that Josephine informed them that she saw the victims again on September 24, 2006 and November 1, 2006,[6] this time at the Camp of the Bravo Company of the Armys 71st Infantry Batallion inside Hacienda Luisita, where she had occasion to talk to Lt. Sumangil and Sgt. Villalobos. Respondents filed a case on December 21, 2006 before the Commission on Human Rights (CHR), which endorsed[7] the same to the Ombudsman for appropriate action. Contending that the victims life, liberty and security had been and continued to be violated on account of their forced disa ppearance, respondents prayed for the issuance of a writ of Amparo, the production of the victims bodies during the hearing on the Writ, the inspection of certain military camps,[8] the issuance of temporary and permanent protection orders, and the rendition of judgment under Section 18 of the Rule on the Writ of Amparo.[9] Meanwhile, a consolidated Return of the Writ,[10] verified by Gen. Esperon, Lt. Sumangil, Sgt. Villalobos, Maj. Gen. Juanito Gomez (Maj. Gen. Gomez) as Commander of the Armys 7th Infantry Division, and Lt. Col. Victor Bayani (Lt. Col. Bayani) as Camp Commander of Camp Servillano Aquino of the Nolcom in Tarlac City, was filed with the appellate court on January 24, 2008. Lt. Gen. Alexander Yano (Lt. Gen. Yano), Commanding General of the Army, filed a Return of the Writ upon his return from an official trip abroad. In their Return, the military officers denied having custody of the victims. They posited that the proper remedy of respondents was to file a petition for the issuance of a Writ of Habeas Corpus, since the petitions ultimate objective was the production of the bodies of the victims, as they were allegedly abducted and illegally detained by military personnel;[11] that the petition failed to indicate the matters required by paragraphs (c), (d) and (e), Section 5 of the Rule on the Writ of Amparo, such that the allegations were incomplete to constitute a cause of action, aside from being based on mere hearsay evidence, and are, at best, speculative; that respondents failed to present the affidavits of some other competent persons which would clearly validate their claim that the military violated the victims right to life, liberty or security by abducting or detaining them; and that the petition did not allege any specific action or inaction attributable to the military officers with respect to their duties; or allege that respondents took any action by filing a formal complaint or visiting the military camps adverted to in order to verify Josephines claim that she saw the victims on two different occasions inside the camps, or that they took efforts to follow up on the PNP Capas Stations further action on their complai nt.[12] Denying he violated the victims right to life, liberty and security, Gen. Esperon specifically asserted that, in compliance with the Defense Secretarys directive in relation to cases of Writ of Amparo against the AFP, he issued directives to the Nolcom Comm ander and the Armys Commanding General to investigate and establish the circumstances surrounding reported disappearances of victims insofar as the claim on the possible involvement of the military units was concerned; and undertook to bring any military personnel involved, when warranted by the evidence, to the bar of justice.[13] Maj. Gen. Gomez likewise denied having custody or knowledge of the whereabouts of the victims, stating that it was not army policy to abduct civilians in his area of responsibility,[14] and that he was away on official business at the time of the alleged disappearance of the victims.[15] Lt. Col. Bayani attested that he was designated Camp Commander only on September 1, 2007 and thus had no personal knowledge about the victims alleged disappearance or abduction on September 18, 2006; that he was informed by his immediate pre decessor that no individuals were detained in the camp as it did not even have detention facilities; and that in compliance with Gen. Esperons directive, their command was conducting further investigation to verify the allegations in the petition.[16] Lt. Sumangil denied having spoken to Josephine inside the camp on September 24, 2006, on which date civilians were not allowed to enter except on official missions or when duly authorized to conduct transactions inside the camp. He thus concluded that Josephine lied in claiming to have seen the two victims inside the Camp of the Bravo Company of the 71st Infantry Batallion inside Hacienda Luisita on September 24, 2006 or at any time thereafter. He instead recounted that on September 24, 2006, he spoke for the first and only time, but only at the gate of the camp, with a person who identified herself as Antonina Galang, who informed him abou t the disappearance of the victims since September 18, 2006. Warning him that these men were members of the New Peoples Army (NPA), she advised him not to entertain any queries or complaints relative to their alleged disappearance.[17] Sgt. Villalobos echoed Sumangils disclaimer about having any of the victims in his custody or meeting anyone named Josephine Victoria, or about the latter having entered the camps kitchen to drink water. Lt. Gen. Yano stated that upon his return from his official functions overseas, he immediately inquired on the actions taken on the case. He averred that he had never participated directly or indirectly; or consented, permitted or sanctioned any illegal or illegitimate military operations. He declared that it had always been his policy to respect human rights and uphold the rule of law, and to bring those who violated the law before the court of justice.

14 | P a g e

In opposing the request for issuance of inspection and production orders, the military officers posited that apart from compromising national security should entry into these military camps/bases be allowed, these orders partook of the nature of a search warrant, such that the requisites for the issuance thereof must be complied with prior to their issuance. They went on to argue that such request relied solely on bare, self-serving and vague allegations contained in Josephines affidavit, for aside from merely mentioning that she saw Nicolas and Heherson on board an army truck near the Nolcom gate and, days later, inside the kitchen of the 71st Infantry Battalion Camp inside Hacienda Luisita and while logging outside said camp, Josephine had stated nothing more to ascertain the veracity of the places where she allegedly saw Nicolas and Heherson.[18] On whether the impleaded military officers were either directly or indirectly connected with the disappearance of the victims, the appellate court, after hearing, absolved, by the assailed Decision of September 17, 2008,[19] Gen. Esperon, Lt. Gen. Yano, Maj. Gen. Gomez, and Lt. Col. Bayani for lack of evidence linking them to the disappearances, and further ruled as follows: All said, this Court is convinced that petitioners have not adequately and convincingly established any direct or indirect link between respondents individual military officers and the disappearances of Nicolas and Heherson. Neither did the concerned Philippine Army Units have exerted fully their efforts to investigate and unearth the truth and bring the culprits before the bar of justice. The concerned Philippine Army units (such as the Northern Command and the 7th Infantry Division, which had jurisdiction over the place of disappearance of Nicolas and Heherson, should exert extraordinary diligence to follow all possible leads to solve the disappearances of Nicolas and Heherson. The Philippine Army should be reminded of its constitutional mandate as the protector of the people and the State. RELIEFS While as We stated hereinbefore that We could not find any link between respondents individual military officers to the disappearance of Nicolas and Heherson, nonetheless, the fact remains that the two men are still missing. Hence, We find it equitable to grant petitioners some reliefs in the interest of human rights and justice as follows: 1. Inspections of the following camps: Camp Servillano Aquino, San Miguel, Tarlac City, any military camp of the 7th Infantry Division located in Aqua Farm, Hacienda Luisita, Tarlac City, within reasonable working hours of any day except when the military camp is on red alert status. 2. Thorough and Impartial Investigation for the appropriate Investigating Unit of the Philippine Army at Camp Servillano Aquino and the Philippine Army, 7th Infantry Division in Fort Magsaysay to conduct their respective investigation of all angles pertaining to the disappearances of Nicolas and Heherson and to immediately file charges against those found guilty and submit their written report to this Court within three (3) months from notice. SO ORDERED.[20] (underscoring supplied) The military officers filed a Motion for Partial Reconsideration (Motion), arguing in the main that since respondents failed to prove the allegations in their petition by substantial evidence, the appellate court should not have granted those reliefs.[21] The appellate court denied the Motion by the assailed Resolution of March 3, 2009.[22] Taking up the cudgels for the military, Gen. Alexander Yano,[23] Lt. Gen. Victor Ibrado,[24] and Maj. Gen. Ralph Villanueva[25] (petitioners) filed the present petition for review of the appellate courts assailed issuances, faulting it for . . . NOT CATEGORICALLY DENYING THE PRIVILEGE OF THE WRIT OF AMPARO PURSUANT TO SECTION 18 OF THE RULE ON THE WRIT OF AMPARO DESPITE ITS FINDING THAT RESPONDENTS FAILED TO PROVE THEIR ALLEGATIONS IN THEIR PETITION FOR AMPARO BY SUBSTANTIAL EVIDENCE. . . . [AND] . . . DIRECTING PETITIONERS TO: (A) ALLOW RESPONDENTS TO INSPECT CAMP SERVILLANO AQUINO, NORTH LUZON COMMAND, PHILIPPINE ARMY, SAN MIGUEL, TARLAC CITY AND ANY MILITARY CAMP OF THE 7TH INFANTRY DIVISION LOCATED IN AQUA FARM, HACIENDA LUISITA, TARLAC CITY; AND. (B) CONDUCT THOROUGH AND IMPARTIAL INVESTIGATION OF THE DISAPPEARANCE OF THE AGGRIEVED PARTIES, FILE CHARGES AGAINST THOSE FOUND GUILTY AND SUBMIT WRITTEN REPORT WITHIN THREE MONTHS FROM NOTICE.[26] (emphasis and underscoring supplied)

The Court finds merit in the petition.

15 | P a g e

In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the appellate court resolved the case on the basis of the credibility of Josephine as a witness. It arrived at the following findings: To prove that these two military officers took or have custody of Nicolas and Heherson, petitioners presented Josephine Galang Victoria, also known as Antonina Galang, a niece of petitioner Cleofas Sanchez neighbor, who allegedly saw Nicolas and Heher son inside Camp Servillano Aquino on September 21, 2006 when she visited her uncle, a certain Major Henry Galang, who is allegedly living inside the camp; that a few days later, she again saw Nicolas and Heherson at Aqua Farm at Hacienda Luisita, where the camp of Bravo Company of the 71st Infantry Battalion is located and where Heherson was seen sweeping the floor and Nicolas was seen cooking, having wounds in their legs near the feet as if sustained from a gunshot wound; that on November 1, 2006, she went back upon advice of Lt. Sumangil to give her a cellfone which Tech. Sgt. Villalobos handed to her for her to know where Nicolas and Heherson will be brought; that they [sic] saw the two outside getting some woods under the watchful eye of a soldier when Sumangil kicked Nicolas for being slow and thereafter, she did not see the two anymore. While Josephine Galang Victorias story of how she saw the subject two missing persons (Nicolas and Heherson) appeared initia lly as plausible, however, her credibility as a witness had been successfully destroyed by the following witnesses presented by the respondents. 1) Barangay Captain Rodolfo P. Supan of Cut-Cut II, Tarlac City, attested that she knows a certain woman named Josephine Galang Victoria who introduces herself as Antonina Galang, niece through the cousin of his wife and a long-time resident of Cut-Cut II since birth until she lived with her partner Philip Victoria and they still visit and goes to her auntie or siblings house; that he knows the reputation of Josephine Victoria as bad regarding her telling the truth, her truthfulness and integrity, known to fool others and invents stories for money reasons, that she cannot be trusted even if she is under oath before God and the State. 2) As if that is not yet enough, Gloria Galang Mansalay testified that she is a resident of Cut-Cut II since birth in 1964 and she knows Josephine Galang Victoria because she is her niece being the daughter of her older brother; that she even took care of Antonina as a child but her general reputation in telling the truth, her fidelity and integrity is bad, known to fool others, a liar and invent [sic] stories for reason of money. 3) Clarita Galang Ricafrente saying that she is a resident of Cut-cut II and Antonina Galang is a niece and attested the same negative reputations against Antonina. It appears that said negative testimonies of Josephine Galang Victorias relatives were never successfully rebutted by her an d the Court gives credence to them. No ill motive [sic] were established against the said witnesses to testify against Antonina Galang. Furthermore, Antonina Galang stated that she was in Camp Servillano Aquino when she first saw Nicolas and Heherson riding in an army truck because she was visiting her uncle, Major Henry Galang, allegedly living in the camp. Parenthetically, this story of Antonina Galang was put to doubt. TSG Edgard Reyes who attested that as a meter reader in the camp, Major Galang was no longer residing there in September 2006. This testimony and revelation of TSG Reyes only bolstered the testimonies of the other witnesses on Antonina Galangs penchant to invent stories or tell a lie. In sum, We are not inclined to give credence to the claims of Antonina Galang that the two missing person [sic] she saw first in Camp Servillano Aquino and later, in Aqua Farm, were Nicolas and Heherson. Notably, Antonina Galang never did see the faces of the two but were known to her through photographs. Certainly, there may be a difference between photographs and the faces in person. To be noted also is that even the two wives of Nicolas did not make an express attestation that they saw Nicolas and Heherson in the company of those armed men who passed their place in the early morning of September 18, 2006.[27] (underscoring supplied) NOTABLY, respondents neither moved for reconsideration nor appealed the appellate courts September 17, 2008 Decision. The entrenched procedural rule in this jurisdiction is that a party who did not appeal cannot assign such errors as are designed to have the judgment modified. All that said appellee can do is to make a counter-assignment of errors or to argue on issues raised at the trial only for the purpose of sustaining the judgment in his favor, even on grounds not included in the decision of the court a quo or raised in the appellants assignment of errors or arguments.[28] This tenet is enshrined as one of the basic principles in our rules of procedure, specifically to avoid ambiguity in the presentation of issues, facilitate the setting forth of arguments by the parties, and aid the court in making its determinations. A party who fails to acquire complete relief from a decision of the court has various remedies to correct an omission by the court. He may move for a correction or clarification of judgment, or even seek its modification through ordinary appeal. There is thus no basis for the Court to skip the rule and excuse herein respondents for failure to properly avail themselves of the remedies in the face of the parties contentions that have remained disputed.[29]

16 | P a g e

What is thus left for the Court to resolve is the issue of whether want of substantial evidence are valid and proper.

the grant of the RELIEFS[30] by the appellate court after finding

Sections 17 and 18 of the Amparo Rule lay down the requisite standard of proof necessary to prove either partys claim, viz: SEC. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claim by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. - The Court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphasis and underscoring supplied) The requisite standard of proof substantial evidence - speaks of the clear intent of the Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in resolving amparo petitions. To the appellate court, the evidence adduced in the present case failed to measure up to that standard substantial evidence which a reasonable mind might accept as adequate to support a conclusion. Since respondents did not avail of any remedy against the adverse judgment, the appellate courts decision is, insofar as it concerns them, now beyond the ambit of review. Meanwhile, the requirement for a government official or employee to observe extraordinary diligence in the performance of duty stresses the extraordinary measures expected to be taken in safeguarding every citizens constitutional rights as well as in the investigation of cases of extra-judicial killings and enforced disappearances.[31] The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs. In line with this, Section 14 of the Amparo Rule provides for interim or provisional reliefs that the courts may grant in order to, inter alia, protect the witnesses and the rights of the parties, and preserve all relevant evidence, viz: SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3 (c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

17 | P a g e

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (emphasis and underscoring supplied) These provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition. For the appellate court to, in the present case, still order the inspection of the military camps and order the army units to conduct an investigation into the disappearance of Nicolas and Heherson after it absolved petitioners is thus not in order. The reliefs granted by the appellate court to respondents are not in sync with a finding that petitioners could not be held accountable for the disappearance of the victims. Respondents posit that there appears to be some shared confusion as to whether the reliefs granted by the appellate court are final or interlocutory. They thus implore this Court to modify the appellate courts judgment by considering the reliefs as temporary or interlocutory and by adding thereto an order for the production of logbooks and reports.[32] At this late stage, respondents can no longer avail themselves of their stale remedies in the guise of praying for affirmative reliefs in their Comment. No modification of judgment could be granted to a party who did not appeal.[33] If respondents believed that the September 17, 2008 Decision of the appellate court was merely interlocutory, they had every opportunity to question the conclusion of said court, but they did not. They could have opposed petitioners motion for reconsideration filed with the appellate court, it being a prohibited pleading[34] under the Amparo Rule, but they did not. WHEREFORE, the petition is GRANTED. The assailed September 17, 2008 Decision and March 3, 2009 Resolution of the Court of Appeals, insofar as it grants the assailed earlier-quoted reliefs are SET ASIDE. SO ORDERED.

18 | P a g e