You are on page 1of 645

RULE 112

1.

[G.R. No. 159747. June 15, 2004.]


SENATOR GREGORIO B. HONASAN II, petitioner, vs. THE
PANEL OF INVESTIGATING PROSECUTORS OF THE
DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F.
DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F.
CAPONONG, JR.), CIDG-PNP-P/DIRECTOR EDUARDO
MATILLANO, AND THE HON. OMBUDSMAN SIMEON V.
MARCELO, respondents.
RESOLUTION
AUSTRIA-MARTINEZ, J :
p

Before the Court is the motion filed by petitioner to cite respondent DOJ Panel of
Investigating Prosecutors (respondent for brevity) in contempt of court for alleged
blatant disregard and defiance of the agreement of the parties with this Court to
maintain the status quo before the filing of their petition for certiorari under Rule
65 of the Rules of Court.
On September 22, 2003, petitioner filed a petition for certiorari with prayer for the
issuance of a temporary restraining order and writ of preliminary injunction
against respondents alleging grave abuse of discretion on the part of respondent
Panel for assuming jurisdiction to conduct the preliminary investigation on the
charge of coup detat against petitioner. Respondents filed their respective
comments and petitioner his reply thereto. An oral argument on the case was
held on November 18, 2003. Parties submitted their respective memoranda as
required by the Court. On April 13, 2004, the Court rendered a decision
dismissing the petition and upholding the concurrent jurisdiction of the
respondent to conduct the preliminary investigation. Petitioner received a copy of

the decision on April 22, 2004, thus he has until May 7, 2004 to file his motion for
reconsideration.
On April 23, 2004, respondent issued its assailed order as follows:
In the light of the ruling of the Supreme Court in G.R. No. 159747 dated
13 April 2004, confirming that this Investigating Panel has jurisdiction to
investigate the instant complaint against respondent Senator Gregorio B.
Honasan II, et al., and to afford respondent full opportunity to controvert
the allegations of the complaint and to adduce evidence;
Wherefore, in the interest of justice, respondent(s) thru counsel are
hereby given a final extension of up to 3 May 2004 within which to file
their counter-affidavit and controverting evidence furnishing with a copy
thereof complainant with proof of service thereof to this Panel.

Petitioner now comes before this Court with a motion to cite respondent in
contempt alleging that the issuance of the assailed order is in direct contravention
and flagrant violation of the agreement of the parties as stated in the Courts
Resolution dated November 18, 2003, which categorically provides:
Further, it was agreed that the Department of Justice, with the assurance
of the Chief State Prosecutor Jovencito R. Zuo, will maintain the
STATUS QUO before the filing of the petition.

Petitioner argues that he still has 15 days from receipt of the Courts decision
to file a motion for reconsideration, i.e., until May 7, 2004, and therefore, until
that period, the decision dated April 13, 2004 is not yet final and executory; he
intends to file a motion for reconsideration within the reglementary period; the
assailed order requiring him to submit his counter-affidavit is premature and
intended to pre-empt and render futile and nugatory any action of petitioner
with respect to the Courts decision dated April 13, 2004, subverting his right
to due process; the Courts decision dated April 13, 2004 has not lifted said
directives to the parties to maintain the status quo nor did the decision
automatically lift the status quo order; the submission of petitioners counteraffidavit would upset the status quosought to be maintained; with the assailed
order of the respondent panel requiring him to submit his counter-affidavit, the
latter has belittled, degraded, obstructed and impeded the administration of

justice and has wantonly defied the Courts authority; and the Panels order
only confirms his fear that his preliminary investigation and detention are
being railroaded.
In its Comment, respondent contends that: contempt of court presupposes a
contumacious attitude, a flouting or arrogant belligerence, a virtual defiance of
the court; no such attitude or intent is discernible from its assailed action in
proceeding with the preliminary investigation since the respondent issued the
assailed Order in good faith and in the conscientious implementation of the
Courts decision upholding the concurrent jurisdiction of the DOJ to investigate
the charges against petitioner for the crime of coup detat; it has no intention to
willfully disregard the authority of the Court since the assailed order was
promulgated in furtherance and in the exercise of their authority to conduct
preliminary investigation on charges against public officers and employees as
mandated by the Constitution and laws as confirmed by the Courts decision
dated April 13, 2004; the charges against petitioner was filed in August 2003 and
the preliminary investigation was pending since then because of the jurisdictional
issue raised before this Court which was decided on April 13, 2004; upon receipt
of such decision, respondent issued the assailed order with the objective of
resolving the investigation taking into account petitioners right to a speedy
disposition of the case against him; the subject order was not in any manner
effected to railroad petitioners arrest and detention but to serve his right to due
process by giving him all the opportunity to controvert the accusations against
him and to adduce evidence in his behalf; otherwise, the respondent could have
immediately filed the information against petitioner the moment he failed to
submit his counter-affidavit; as a manifestation of good faith, respondent desisted
from further proceeding with the investigation and deferred any action until after
the Courts decision on April 13, 2004; in contempt proceeding, intent, however,
goes to the gravamen of the offense, and the good faith or lack of it, of the
alleged contemnor should be considered; contempt partakes of the nature of a
criminal offense, and doubts should be resolved in favor of the person against
whom proceedings have been brought; and only in cases of clear and
contumacious refusal to obey should the power to punish for contempt of court be
exercised.
aIAEcD

We deny the motion to cite respondent Panel in contempt of court.

Contempt of court is defined as disobedience to the court by acting in opposition


to its authority, justice and dignity. It signifies not only a willful disregard or
disobedience of the courts orders, but such conduct as tends to bring the
authority of the court and administration of law into disrepute or in some manner
to impede the due administration of justice. 1 The power to punish for contempt of
court should be exercised on the preservative and not on the vindictive
principle. 2 Only occasionally should the court invoke its inherent power in order
to retain that respect without which the administration of justice may falter or fail.
Such power being drastic and extraordinary in its nature should not be resorted
to unless necessary in the interest of justice. 3
In compliance with the Courts Resolution dated November 18, 2003, respondent
had stopped from further proceeding with the preliminary investigation while the
case is pending before the court. Respondent issued its assailed order requiring
petitioner to submit his counter-affidavit after receipt of the Courts decision dated
April 13, 2004 upholding respondents authority to conduct the preliminary
investigation on the charge of coup detat against petitioner. Although the Courts
decision dated April 13, 2004 is not yet final as of the date of the issuance of the
said assailed order, the court finds no contemptuous intent on the part of
respondent to impede the administration of justice. As respondent has explained
in its Comment, the charges against petitioner was filed with the DOJ in August
2003 and since then, the preliminary investigation has been pending, thus with
the Courts decision upholding their jurisdiction, respondent issued the assailed
order taking into account petitioners right to a speedy disposition of his case.
Clearly, respondents intention is to give respondent all the opportunity to
controvert the accusation against him and to adduce evidence in his behalf. The
Court finds respondents explanation satisfactory and does not see the act of
respondent as contumacious, as herein earlier defined by the Court.
Petitioner asserts in his Motion that he received on April 22, 2004, a copy of the
Courts decision upholding respondents authority to conduct preliminary
investigation, and that he has until May 7, 2004 to file his motion for
reconsideration. However, verification with the Courts docket section reveals that
petitioner filed his motion for reconsideration only on June 8, 2004, or thirty days
late. The Courts decision dated April 13, 2004 has already attained finality as of

May 8, 2004. Hence, there is no longer any impediment for respondent to


proceed with the preliminary investigation and for petitioner to comply with the
respondents order to submit his counter-affidavit.
WHEREFORE, petitioners motion to cite respondent in contempt of court is
DENIED. Respondent is required to give petitioner a fresh period from receipt of
this Resolution to submit his counter-affidavit.
SO ORDERED.
|||

(Honasan II v. Panel of Investigating Prosecutors of the DOJ, G.R. No. 159747,

[June 15, 2004], 476 PHIL 127-134)

2.
[G.R. No. 197293. April 21, 2014.]
ALFREDO C. MENDOZA, petitioner, vs. PEOPLE OF THE
PHILIPPINES AND JUNO CARS, INC., respondents.
DECISION
LEONEN, J :
p

While the determination of probable cause to charge a person of a crime is the


sole function of the prosecutor, the trial court may, in the protection of one's
fundamental right to liberty, dismiss the case if, upon a personal assessment of
the evidence, it finds that the evidence does not establish probable cause.
This is a petition for review on certiorari 1 assailing the Court of Appeals'
decision 2 dated January 14, 2011, which reversed the Regional Trial Court's
dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
theft and estafa.

This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and
estafa against Alfredo. 3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo
as Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator,
Rolando Garcia, conducted a partial audit of the used cars and discovered that
five (5) cars had been sold and released by Alfredo without Rolando's or the
finance manager's permission. 4
The partial audit showed that the buyers of the five cars made payments, but
Alfredo failed to remit the payments totalling P886,000.00. It was further alleged
that while there were 20 cars under Alfredo's custody, only 18 were accounted
for. Further investigation revealed that Alfredo failed to turn over the files of a
2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking
into account the unremitted amounts and the acquisition cost of the Honda City,
Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and damage. 5
In his counter-affidavit, Alfredo raised, among others, Juno Cars' supposed failure
to prove ownership over the five (5) cars or its right to possess them with the
purported unremitted payments. Hence, it could not have suffered damage. 6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a
resolution 7 finding probable cause and recommending the filing of an information
against Alfredo for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied. 8 He then filed a
petition for review with the Department of Justice on May 16, 2008. 9
While Alfredo's motion for reconsideration was still pending before the Office of
the City Prosecutor of Mandaluyong, two informations for qualified theft 10 and
estafa 11 were filed before the Regional Trial Court, Branch 212, Mandaluyong
City. On March 31, 2008, Alfredo filed a motion for determination of probable
cause 12 before the trial court. On April 28, 2008, he also filed a motion to defer
arraignment.

Several clarificatory hearings were scheduled but were not conducted. 13 On


February 4, 2009, the parties agreed to submit all pending incidents, including
the clarificatory hearing, for resolution. 14
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali,
issued an order 15 dismissing the complaint, stating that:
After conducting an independent assessment of the evidence on record
which includes the assailed Resolution dated 04 March 2008, the court
holds that the evidence adduced does not support a finding of probable
cause for the offenses of qualified theft and estafa. . . . . 16

Juno Cars filed a motion for reconsideration, which the trial court denied on July
3, 2009. 17
CDAHIT

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing
that the trial court acted without or in excess of its jurisdiction and with grave
abuse of discretion when it dismissed the complaint. It argued that "the
determination of probable cause and the decision whether or not to file a criminal
case in court, rightfully belongs to the public prosecutor." 18
On January 14, 2011, the Court of Appeals rendered a decision, 19 reversed the
trial court, and reinstated the case. In its decision, the appellate court ruled that
the trial court acted without or in excess of its jurisdiction "in supplanting the
public prosecutor's findings of probable cause with her own findings of
insufficiency of evidence and lack of probable cause." 20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In
essence, he argued that the trial court was correct in finding that there was no
probable cause as shown by the evidence on record. He argued that "judicial
determination of probable cause is broader than [the] executive determination of
probable cause" 21and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor . . . ." 22
In its comment, 23 Juno Cars argued that Alfredo presented questions, issues,
and arguments that were a mere rehash of those already considered and passed
upon by the appellate court.

The Office of the Solicitor General, arguing for public respondent, stated in its
comment 24 that the appellate court correctly sustained the public prosecutor in
his findings of probable cause against Alfredo. Since there was no showing of
grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court
should respect his determination of probable cause.
In his reply, 25 Alfredo reiterated that "judicial determination of probable cause[,]
while not a superior faculty[,] covers a broader encompassing perspective in the
disposition of the issue on the existence of probable cause." 26 He argued that
the findings of the trial court should be accorded greater weight than the
appellate court's. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss an information filed by
the prosecutor on the basis of its own independent finding of lack of probable
cause.
Time and again, this court has been confronted with the issue of the difference
between the determination of probable cause by the prosecutor on one hand and
the determination of probable cause by the judge on the other. We examine these
two concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft 27 and estafa under
Article 315, fourth paragraph, no. 3 (c) 28 of the Revised Penal Code.Since
qualified theft is punishable by reclusion perpetua, a preliminary investigation
must first be conducted "to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial," in accordance
with Rule 112, Section 1 of the Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent
determination of the existence of probable cause lie solely within the discretion of
the public prosecutor. 29 If upon evaluation of the evidence, the prosecutor finds
sufficient basis to find probable cause, he or she shall then cause the filing of the
information with the court.
Once the information has been filed, the judge shall then "personally evaluate the
resolution of the prosecutor and its supporting evidence" 30 to determine whether

there is probable cause to issue a warrant of arrest. At this stage,


a judicial determination of probable cause exists.
In People v. Castillo and Mejia, 31 this court has stated:
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made
during preliminary investigation. It is a function that properly pertains to
the public prosecutor who is given a broad discretion to determine
whether probable cause exists and to charge those whom he believes to
have committed the crime as defined by law and thus should be held for
trial. Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in court. Whether
or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of
the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one
made by the judge to ascertain whether a warrant of arrest should be
issued against the accused. The judge must satisfy himself that based
on the evidence submitted, there is necessity for placing the accused
under custody in order not to frustrate the ends of justice. If the judge
finds no probable cause, the judge cannot be forced to issue the arrest
warrant. 32

The difference is clear: The executive determination of probable cause concerns


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

. . . Judges and Prosecutors alike should distinguish the preliminary


inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of one and the same proceeding, there
should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is

reasonable ground to believe that the accused is guilty of the


offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is
the function of the Prosecutor. 34 (Emphasis supplied)

While it is within the trial court's discretion to make an independent assessment


of the evidence on hand, it is only for the purpose of determining whether a
warrant of arrest should be issued. The judge does not act as an appellate court
of the prosecutor and has no capacity to review the prosecutor's determination of
probable cause; rather, the judge makes a determination of probable cause
independent of the prosecutor's finding.
People v. Court of Appeals and Jonathan Cerbo 35 discussed the rationale. In
that case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his
father, Billy Cerbo. An information for murder was filed against Jonathan Cerbo.
The daughter of Rosalinda Dy, as private complainant, executed a complaintaffidavit charging Billy Cerbo with conspiracy. The prosecutor then filed a motion
to amend the information, which was granted by the court. The information was
then amended to include Billy Cerbo as one of the accused, and a warrant of
arrest was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued without
probable cause. The trial court granted this motion, recalled the warrant, and
dismissed the case against him. The Court of Appeals affirmed this dismissal.
This court, however, reversed the Court of Appeals and ordered the
reinstatement of the amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the
guilt or innocence of Private Respondent Billy Cerbo. We are simply
saying that, as a general rule, if the information is valid on its face
and there is no showing of manifest error, grave abuse of discretion
or prejudice on the part of the public prosecutor, courts should not
dismiss it for 'want of evidence,' because evidentiary matters
should be presented and heard during the trial. The functions and
duties of both the trial court and the public prosecutor in "the proper
scheme of things" in our criminal justice system should be clearly
understood.

The rights of the people from what could sometimes be an "oppressive"


exercise of government prosecutorial powers do need to be protected
when circumstances so require. But just as we recognize this need, we
also acknowledge that the State must likewise be accorded due
process. Thus, when there is no showing of nefarious irregularity or
manifest error in the performance of a public prosecutor's duties, courts
ought to refrain from interfering with such lawfully and judicially
mandated duties.
In any case, if there was palpable error or grave abuse of discretion in
the public prosecutor's finding of probable cause, the accused can
appeal such finding to the justice secretary and move for the deferment
or suspension of the proceedings until such appeal is
resolved. 36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado
found that the facts and evidence were "sufficient to warrant the indictment of
[petitioner] . . . ." 37 There was nothing in his resolution which showed that he
issued it beyond the discretion granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali
still had the discretion to make her own finding of whether probable cause existed
to order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served.
Absent this, the court cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.

The Constitution prohibits the issuance of search warrants or warrants of arrest


where the judge has not personally determined the existence of probable cause.

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

In People v. Hon. Yadao: 38


Section 6, Rule 112 of the Rules of Court gives the trial court three
options upon the filing of the criminal information: (1) dismiss the case if
the evidence on record clearly failed to establish probable cause; (2)
issue a warrant of arrest if it finds probable cause; and (3) order the
prosecutor to present additional evidence within five days from notice in
case of doubt as to the existence of probable cause.
But the option to order the prosecutor to present additional evidence is
not mandatory. The court's first option under the above is for it to
"immediately dismiss the case if the evidence on record clearly
fails to establish probable cause." That is the situation here: the
evidence on record clearly fails to establish probable cause against the
respondents. 39 (Emphasis supplied)

It is also settled that "once a complaint or information is filed in court, any


disposition of the case, whether as to its dismissal or the conviction or the
acquittal of the accused, rests in the sound discretion of the court." 40
In this case, Judge Capco-Umali made an independent assessment of the
evidence on record and concluded that "the evidence adduced does not support
a finding of probable cause for the offenses of qualified theft and
estafa." 41 Specifically, she found that Juno Cars "failed to prove by competent
evidence" 42 that the vehicles alleged to have been pilfered by Alfredo were
lawfully possessed or owned by them, or that these vehicles were received by
Alfredo, to be able to substantiate the charge of qualified theft. She also found
that the complaint "[did] not state with particularity the exact value of the alleged
office files or their valuation purportedly have been removed, concealed or
destroyed by the accused," 43 which she found crucial to the prosecution of the
crime of estafa under Article 315, fourth paragraph, no. 3 (c) of the Revised
Penal Code.She also noted that:
. . . As a matter of fact, this court had even ordered that this case be set
for clarificatory hearing to clear out essential matters pertinent to the
offense charged and even directed the private complainant to bring
documents relative to the same/payment as well as affidavit of
witnesses/buyers with the end view of satisfying itself that indeed
probable cause exists to commit the present case which private
complainant failed to do. 44

Accordingly, with the present laws and jurisprudence on the matter, Judge
Capco-Umali correctly dismissed the case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always
proceed with caution in dismissing cases due to lack of probable cause,
considering the preliminary nature of the evidence before it. It is only when he or
she finds that the evidence on hand absolutely fails to support a finding of
probable cause that he or she can dismiss the case. On the other hand, if a judge
finds probable cause, he or she must not hesitate to proceed with arraignment
and trial in order that justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011
of the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET

ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza


are DISMISSED.
SO ORDERED.
|||

(Mendoza v. People, G.R. No. 197293, [April 21, 2014])

3.
[G.R. No. 114266. December 4, 1996.]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. ROGELIO
VILLANUEVA and MAMERTO DURANA, accused, MAMERTO
DURANA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Valera Law Office and Associates for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
FAILURE OF ACCUSED TO INVOKE RIGHT TO PRELIMINARY
INVESTIGATION BEFORE OR AT THE TIME HE ENTERED HIS PLEA AT THE
ARRAIGNMENT CONSTITUTE WAIVER THEREOF. It is settled that the
absence of a preliminary investigation does not impair the validity of the
information or otherwise render the same defective; neither does it affect the
jurisdiction of the court over the case, nor does it constitute a ground for
quashing the information. If no preliminary investigation has been held, or if it is
flawed, the trial court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings on the criminal case in abeyance. In this
case, accused-appellant failed to invoke such right to preliminary investigation
before or at the time he entered his plea at arraignment. He can no longer invoke
that right at this late stage of the proceedings.

2. ID.; EVIDENCE; FACTUAL FINDINGS OF THE TRIAL COURTS; POLICY OF


THE COURT. It is the policy of the Court, founded on reason and experience,
to sustain the factual findings of the trial court in criminal cases on the rational
assumption that it is in a better position to assess the evidence before it;
consequently, findings of the trial court are entitled to the highest degree of
respect and will not be disturbed on appeal in the absence of any showing that
the court overlooked, misunderstood or misapplied some facts or circumstances
of weight and substance which if considered would have affected the result of the
case. It is the trial court and not any court on appeal that can best ascertain the
credibility of witnesses.
3. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONIES; INCONSISTENCIES
ON MINOR OR TRIVIAL MATTERS TEND TO STRENGTHEN RATHER THAN
WEAKEN CREDIBILITY. Discrepancies on minor matters do not impair the
essential integrity of the evidence for the prosecution as a whole nor reflect on
the honesty of the witness. The alleged inconsistencies on the testimony of Gloria
Meniano dwell on minor and trivial matters which only serve to strengthen than
weaken her credibility. The most honest witness may sometimes commit
mistakes but such honest lapses do not necessarily impair his credibility
especially when minor details are involved. Human memory may be temporarily
paralyzed by a startling event especially if the same involves a person close to
the witness.
4. CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY;
CONSPIRACY; INFERRED FROM AND ESTABLISHED BY THE ACTS OF THE
ACCUSED THEMSELVES WHEN SAID ACTS POINT TO A JOINT PURPOSE
AND DESIGN, CONCERTED ACTION AND COMMUNITY OF PURPOSE;
CASE AT BAR. We hold that the trial court correctly found the existence of
conspiracy between the two accused in killing the deceased with the employment
of treachery. Conspiracy can be inferred from and established by the acts of the
accused themselves when said acts point to a joint purpose and design,
concerted action and community of interests. In the instant case, it was clearly
shown that while appellant purposely challenged the deceased to go out of his
house, his co-accused secretly hid among the plants outside of the house to
await Diosdado and when the latter finally appeared, the former suddenly and

without warning pounded upon the victim and hacked him to death. Indeed
Villanueva and Durana gave their victim no chance to defend himself nor even to
repel the assault on him considering the unexpected attack on his person to
ensure the accomplishment of their objective without risk to themselves.
5. ID.; ID.; ID.; LIABILITY OF CO-CONSPIRATORS. Conspiracy between
appellant and his co-accused having been established, the guilt or culpability of
one is imputable to both of them in equal degree although accused Rogelio
Villanueva still has to be apprehended and then tried before he can be declared
guilty as the evidence may warrant.
DECISION
BELLOSILLO, J :
p

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

hacking, Durana continued challenging Diosdado to a fight. He even taunted the


victim, "You cannot bear a wound." 7 Villanueva and Durana then ran away.
Elenita Meniano, sister-in-law and neighbor of Diosdado, also witnessed the
hacking incident. She testified that on 12 November 1992 she and her husband
were awakened by the shouts of Mamerto Durana challenging Diosdado to a
fight; 8 that they watched the incident through the window and saw Diosdado
hacked by Villanueva after the former went down from his house; that after
Diosdado was slain, she saw Durana brandishing a bolo near the crime scene. 9
The body of Diosdado Meniano was examined by Dr. Angel A. Cordero, MedicoLegal Officer, Camp Kangleion, Palo, Leyte, who ascribed the cause of death to
"shock and hemorrhage due to hacking wounds of the right basal portion of the
skull, lacerating the spinal column." 10
The defense is alibi. Mamerto Durana claims that in the evening of 12 November
1992 he was in the store of a certain Rogelio Baganio some 30 meters from the
house of the deceased to buy cigarettes 11 and to fetch his children who were
watching television in the store. Baganio's store was about half a kilometer away
from his residence.
The defense of appellant was not sustained by the trial court.
In this appeal appellant contends that the court a quo erred (a) in failing to
consider the fact that he was not a party respondent during the preliminary
investigation of the case and (b) in giving credence to the testimony of Gloria
Meniano. 12
Accused-appellant argues that the instant case was filed in court for murder only
against the other accused, Rogelio Villanueva, on the basis of the resolution of
the prosecutor in I.S. No. 92-1524; that he was not made a respondent in the
investigation; that despite the sworn statements of witnesses Gloria Meniano and
Elenita Meniano who pointed to him as co-conspirator, he was not included in the
charge for murder because, according to the police, he would be used as a
witness against the accused Villanueva.
The argument is without merit. It is settled that the absence of a preliminary
investigation does not impair the validity of the information or otherwise render

the same defective; neither does it affect the jurisdiction of the court over the
case, nor does it constitute a ground for quashing the information. 13 If no
preliminary investigation has been held, or if it is flawed, the trial court may, on
motion of the accused, order an investigation or reinvestigation and hold the
proceedings on the criminal case in abeyance. 14 In this case, accused-appellant
failed to invoke such right to preliminary investigation before or at the time he
entered his plea at arraignment. 15 He can no longer invoke that right at this late
stage of the proceedings.
Appellant likewise cites what he believes are inconsistencies in the testimony of
prosecution witness Gloria Meniano which cast serious doubt on its truthfulness:
(a) her statement that when her husband was hacked appellant and his coaccused were still there 16 although she later testified that the other accused was
able to run away when her husband was felled after the attack, 17 and, (b) that
during the investigation Gloria informed the police authorities that her husband
went out of the house because appellant asked her for a stick of cigarette but in
court she swore that appellant challenged her husband to a fight. 18
It is the policy of the Court, founded on reason and experience, to sustain the
factual findings of the trial court in criminal cases on the rational assumption that
it is in a better position to assess the evidence before it; consequently, findings of
the trial court are entitled to the highest degree of respect and will not be
disturbed on appeal in the absence of any showing that the court overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which if considered would have affected the result of the case. It is the
trial court and not any court on appeal that can best ascertain the credibility of
witnesses.
Discrepancies on minor matters do not impair the essential integrity of the
evidence for the prosecution as a whole nor reflect on the honesty of the
witness. 19 The alleged inconsistencies on the testimony of Gloria Meniano dwell
on minor and trivial matters which only serve to strengthen than weaken her
credibility. The most honest witness may sometimes commit mistakes but such
honest lapses do not necessarily impair his credibility especially when minor
details are involved. Human memory may be temporarily paralyzed by a startling
event especially if the same involves a person close to the witness.

Contrary to the allegations of the accused-appellant, there was no such


inconsistency in the testimony of Gloria Meniano concerning the former's
participation in the killing of her husband. To the questions of the trial court, the
witness clearly testified as to the existence of conspiracy between appellant and
his co-accused. Thus
Court:
Q. I will ask some clarificatory questions. The police would have not
known the incident if you did not give information to the police,
right?
A. Yes, sir.
Q. Now, here you said that Mamerto Durana was asking from your
husband a stick of cigarette. Did you say this to the police.
A. I did not say that to the police.
Q. Then how could the police state it here if not given that information by
you?
A. I was still confused at that time because of the death of my husband.
Q. Now, here in this excerpt of the blotter the person you identified to the
police who hacked your husband was not Rogelio Villanueva but
Mamerto Durana and apparently this is the information you gave
to the police?
A. No, sir, that is not what I told to (sic) the police.
Q. What did you tell to (sic) the police?
A. I told the policemen that it was Rogelio Villanueva who hacked my
husband.
Q. Why did you not tell the police that the accused here Mamerto Durana
was asking for a stick of cigarette from your husband that is the
reason why your husband went out of the house?
A. Maybe I was still confused at that time, I do not know.

Q. But even if you were confused the fact that the dead man here is your
husband you cannot be confused which one killed your husband
and what preceded?
A. I would not be confused on the person who killed my husband.
Q. The court feels that the situation is like this, that either you are telling
the truth or this complaint was only based on suspicion that it was
the two accused who conspired to kill your husband or maybe you
did not see the actual killing?
A. It is not only my suspicion because I saw that it was Rogelio
Villanueva who hacked my husband.
Q. So it is clear now that what you told the police was that Mamerto
Durana challenged your husband to a fight and not that Mamerto
Durana was asking for a stick of cigarette from your husband?
A. Yes, sir. 20

Gloria Meniano's testimony in court jibes with the sworn statement she executed
on 16 November 1992 before the police authorities. 21 This statement as well as
her testimony clearly points to the appellant as the person who challenged and
drew Diosdado Meniano out of his house so that the latter could be hacked
without warning by his co-accused. The inconsistency alleged by accusedappellant referred merely to a police investigation report stating that Meniano
allegedly told the police authorities that appellant asked for a cigarette stick from
the deceased prompting the latter to go out of his house. This cannot prevail over
the positive identification in court by the witnesses for the prosecution that
appellant was one of two culprits criminally responsible for the death of Diosdado
Meniano.
We hold that the trial court correctly found the existence of conspiracy between
the two accused in killing the deceased with the employment of treachery.
Conspiracy can be inferred from and established by the acts of the accused
themselves when said acts point to a joint purpose and design, concerted action
and community of interests. 22 In the instant case, it was clearly shown that while
appellant purposely challenged the deceased to go out of his house, his coaccused secretly hid among the plants outside of the house to await Diosdado

and when the latter finally appeared, the former suddenly and without warning
pounced upon the victim and hacked him to death. Indeed Villanueva and Durana
gave their victim no chance to defend himself nor even to repel the assault on
him considering the unexpected attack on his person to ensure the
accomplishment of their objective without risk to themselves. Conspiracy
between appellant and his co-accused having been established, the guilt or
culpability of one is imputable to both of them in equal degree 23 although
accused Rogelio Villanueva still has to be apprehended and then tried before he
can be declared guilty as the evidence may warrant.
The penalty for murder under Art. 248 of the Revised Penal Code is reclusion
temporal in its maximum period to death. There being no mitigating or
aggravating circumstances that attended the commission of the offense, the trial
court therefore correctly imposed the penalty of reclusion perpetua upon accused
Mamerto Durana.
WHEREFORE, the decision finding accused-appellant MAMERTO DURANA
guilty of murder and imposing upon him a prison term of reclusion perpetua, as
well as ordering him to indemnify the heirs of Diosdado Meniano in the amount of
P50,000.00 is AFFIRMED, with costs against accused-appellant.
SO ORDERED.
|||

(People v. Villanueva and Durana, G.R. No. 114266, [December 4, 1996], 333

PHIL 148-157)

4.
[G.R. No. 169042. October 5, 2011.]
ERDITO QUARTO, petitioner, vs. THE HONORABLE
OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL
PROSECUTOR DENNIS VILLA IGNACIO, LUISITO M. TABLAN,
RAUL B. BORILLO, and LUIS A. GAYYA, respondents.

DECISION
BRION, J :
p

Before the Court is a petition for certiorari and mandamus 1 filed by


Erdito Quarto (petitioner) assailing the Ombudsman's January 7, 2004 2 and
November 4, 2004 3 resolutions which granted Luisito M. Tablan, Raul B.
Borillo, and Luis A. Gayya (collectively, respondents) immunity from
prosecution, resulting in the respondents' exclusion from the criminal
informations filed before the Sandiganbayan. The petitioner seeks to nullify the
immunity granted to the respondents, and to compel the Ombudsman to
include them as accused in the informations for estafa through falsification of
public documents 4 and for violation of Section 3 (e), Republic Act (RA) No.
3019. 5
FACTUAL ANTECEDENTS
The petitioner is the Chief of the Central Equipment and Spare Parts
Division (CESPD), 6 Bureau of Equipment (BOE), Department of Public Works
and Highways(DPWH), Port Area, Manila. As CESPD Chief, he is also the
Head of the Special Inspectorate Team (SIT) of the DPWH. 7 The respondents
are members of the SIT. 8
On January 9, 2002, DPWH Secretary Simeon Datumanong created a
committee to investigate alleged anomalous transactions involving the repairs
and/or purchase of spare parts of DPWH service vehicles in 2001. 9 On
January 17, 2002, the committee designated the DPWH Internal Audit
Service (IAS) as its Technical Working Group to conduct the actual
investigation. 10
In the course of its investigation, the DPWH-IAS 11 learned that the
emergency repairs and/or purchase of spare parts of DPWH service vehicles
basically undergo the following documentary process:
I. Determination of repairs and/or spare parts needed

IHCacT

a. The end-user requesting repair brings the service vehicle


to the Motorpool Section, CESPD for initial inspection
and preparation of Job Order; and
b. Based on the Job Order, the SIT conducts a pre-repair
inspection (to determine the necessity of repair and
whether the repair is emergency in nature) and
prepares a Pre-Repair Inspection Report, with a
recommendation for its approval by the CESPD Chief.
II. Preparation and Approval of Requisition for Supplies and/or
Equipment with accompanying documents (Job Order and
Pre-Inspection Report)
a. The Procurement Section, Administrative Manpower
Management Service (AMMS) prepares the
Requisition for Supplies and Equipment (RSE), the
Canvass Quotation of three Suppliers, the Certificate
of Emergency Purchase, and the Certificate of Fair
Wear and Tear;
b. The end-user signs the RSE with the recommending
approval of the concerned head of office; and
c. The AMMS Director approves the RSE.
III. Repair of Vehicles
a. The end-user selects the repair shop/auto supply from
accredited establishments;
b. The selected repair shop/auto supply repairs the service
vehicle and issues the corresponding sales invoice
and/or official receipt;
c. The end-user accepts the repair and executes a Certificate
of Acceptance;
d. The SIT conducts a post-repair inspection (to check if the
vehicle was repaired and whether the repair

conformed to specifications) and prepares a PostRepair Inspection Report, with a recommendation for
its approval by the CESPD Chief. The Motorpool and
the end-user would prepare the Report of Waste
Materials also for the signature of the CESPD Chief;
and
SCaIcA

e. The Assets and Supply Management and Control Division


recommends payment of the expense/s incurred.
The processing of the payment of claims for reimbursement follows the above
process.
Based on this procedure, the DPWH-IAS discovered that from March to
December 2001, several emergency repairs and/or purchase of spare parts of
hundreds of DPWH service vehicles, which were approved and paid by the
government, did not actually take place, resulting in government losses of
approximately P143 million for this ten-month period alone. 12
Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of
the Ombudsman 13 a Complaint-Affidavit 14 and a Supplemental ComplaintAffidavit 15charging several high-ranking DPWH officials and employees
including the petitioner, the respondents, and other private individuals who
purportedly benefited from the anomalous transactions with Plunder,
Money Laundering, Malversation, and violations of RA No. 3019 and the
Administrative Code. 16
Atty. Ofilada imputed the following acts to the petitioner:
With dishonesty and grave misconduct, [the petitioner] . . . approved
four (4) job orders for [the] repairs [and/or] purchase of spare parts of
[the vehicle assigned to Atty. Ofilada,] noted the certificate of urgency of
said repairs [and/or] purchase[,] concurred with both the pre-repair
and post repair inspection reports thereon, participated in the
accomplishment of the supporting Requisition for Supplies and
Equipment (RSE) . . .[,] and participated in the approval of the
disbursement voucher authorizing payment of said repairs as necessary
and lawful [even if said vehicle was never referred to the Motorpool
Section, CESPD for repair].

The documents relating to [this vehicle] were filed within a period of one
month (between September to October 2001) [and] were used to
authorize the payment of said non existent ghost repairs to the damage
and prejudice of the [DPWH.] 17 (emphases ours)
DCcSHE

On the other hand, Atty. Ofilada charged the respondents with the following:
With dishonesty and grave misconduct, [respondents] as members of the
[SIT] . . . accomplished and signed Pre-Repair Inspection and Post
Repair Inspection Reports in support of the four job orders [and
made] it appear that the vehicle was inspected prior and after the
alleged repair [although they knew that the vehicle was never
turned over for inspection]. The accomplishment of the Pre-Repair
and Post-Repair Inspection Report[s] led to the preparation of the
Request for Supplies and Equipment which was the basis of the
preparation of the disbursement vouchers ultimately authorizing the
payment of the said repairs thru reimbursement scheme to the damage
and prejudice of the DPWH.
. . . the [P]re-[R]epair and [P]ost-[R]epair [I]nspection [R]eports of the
[SIT] . . . are fictitious and falsified as no actual inspection could have
transpired[.] 18 (emphasis ours)

The petitioner denied the allegations against him, claiming that he


merely relied on his subordinates when he signed the job orders and the
inspection reports. 19 In contrast, the respondents admitted the existence of
irregularities in the repairs and/or purchase of spare parts of DPWH service
vehicles, and offered to testify and to provide evidence against the DPWH
officials and employees involved in the anomaly in exchange for their immunity
from prosecution. The respondents submitted:
5.2 . . . since we assumed our duties as members of the SIT . . ., we
observed that [the] DPWH vehicles were being sent to the repair shop in
violation of the prescribed guidelines governing the emergency repair of
a service vehicle. In most instances, service vehicles are
immediately brought to a car repair shop of the end-user's choice
without bringing it first to the [Motorpool Section, CESPD, BOE] for
the preparation of the required job order by [Gayya] of the
Motorpool Section and the pre-repair inspection to be conducted by

the SIT. After the purported repairs are done, SIT members are
made to sign a post-repair inspection report which already includes
a typed-in recommendation for the payment of repairs, and the
signature of the Head of the [SIT] indicating his alleged
concurrence with the findings of the SIT despite the absence of an
actual inspection. The post-repair inspection report is accompanied by
the following attachments, to wit: a) a falsified job order signed by the
head of the [SIT] and the Chief of the Motorpool Section . . . [and] e) an
empty or falsified [p]re-repair inspection report[.]
5.3 Initially[,] we tried to curb the above anomalous practices being
perpetrated by suppliers and officials of the DPWH . . . [by making]
known [our] objections to the questionable job orders for the proposed
repairs of DPWH service vehicles[,] thus:
ECTSDa

a. On July 9, 1999, [Tablan] wrote the Head of the SIT a


memorandum . . . stating that the job orders for [several
identified vehicles] . . . violated the prohibition against
splitting of job orders . . . . [Tablan recommended for public
bidding the proposed repairs for the said vehicles].
b. In connection with the job orders involving [several identified
vehicles] . . . Tablan and Borillo wrote the Head of the SIT a
Memorandum . . . recommending that the whereabouts of
the end-user be verified, and the service vehicle be reinspected and/or disposed of.
c. Since the July 9, 1999 Memorandum was returned to . . .
Tablan without any action being undertaken by the SIT
Chief, [Tablan and Borillo] reiterated the recommendation
for the public bidding of the proposed repairs described
therein[.]
6. In our attempts to perform our sworn duties, however, we incurred the
displeasure of the suppliers, the head of [SIT] and other officials of the
DPWH who threatened various administrative sanctions against us if we
should not accede to their wishes. . . .
7. In addition to the foregoing, there are other factors which conspired to
prevent us from properly performing our duties. For one, the DPWH

processes an average of 3,000 repairs per calendar year. Given the


staggering number and extent of repairs, including the volume of
paperwork, it was practically impossible for [us] to implement the rules
which proved too tedious under the circumstance. As such, a "short-cut"
of the rules was necessary to accommodate the demands of the enduser, the suppliers, our superiors, and other executives of the
DPWH. . . .
8. The anomalous practices of the DPWH executives and suppliers in
the purported repair of DPWH service vehicles were indeed more
widespread and rampant in the year 2001. As a precautionary measure,
we took the initiative of photocopying these sets of falsified documents
as they were presented to us before we affixed our respective signatures
thereon. We grouped these documents into Sets A and B[.]
DIEAHc

xxx xxx xxx


11. . . . That the service vehicle . . . has not been actually inspected by
[Tablan and Borillo] is attested to by the pre and post repair inspection
reports initially bearing the signature of the head of the SIT as concurring
official without the required signatures of Borillo and Tablan. More
importantly, these DPWH officials did not bother, in a majority of cases,
to "cover their tracks" when they prepared and signed the pre and post
repair inspection reports on the same dates. Based on proper procedure,
a post repair inspection report is to be accomplished only after the
preparation and approval of the Job Order, pre-repair inspection report,
RSE, Cash Invoice and Acceptance by the end-user. In this case, the
RSE, Cash Invoice and Certificate of Acceptance are dated much later
than the post-repair inspection report. Since . . . there was no actual prerepair and post-repair inspection conducted, the foregoing sample
instances paved the way for the "ghost repairs" of DPWH service
vehicles, to the detriment and prejudice of the government.
12. Because of the anomalous transactions, the joke circulating around
the DPWH is that we are actually the directors of the DPWH since we
are the "last to sign," so to speak. That the signature[s] of the
[respondent] SIT members are merely pro forma is all the more
pronounced in a sample set consisting of a number of pre-repair
inspection reports for a particular month in 2001. The pre-repair

inspection reports of the service vehicles indicated therein are empty of


any findings and bear the signature of the head of the SIT as concurring
official. All the foregoing documents above detailed negate the
convenient excuse proffered by DPWH executives that they sign the
documents only after the SIT had inspected the service vehicle and
prepared the pre and post repair inspection reports.
xxx xxx xxx
14.1. . . the above examples are only a representative sampling of the
extent of the anomalous transactions involving DPWH service vehicles
which can be considered "ghost repairs." There are more instances
wherein [we] are willing to testify to in exchange for immunity from
prosecution. 20 (emphases ours)

After conducting preliminary investigation, the Ombudsman filed with


the Sandiganbayan 21 several informations charging a number of DPWH
officials and employees with plunder, 22 estafa through falsification of
official/commercial documents and violation of Section 3 (e), RA No. 3019. On
the other hand, the Ombudsman granted the respondents' request for
immunity in exchange for their testimonies and cooperation in the prosecution
of the cases filed.
The petitioner initially filed a certiorari petition with the Sandiganbayan,
questioning the Ombudsman's grant of immunity in the respondents' favor.
The Sandiganbayan, however, dismissed the petition for lack of jurisdiction
and advised the petitioner to instead question the Ombudsman's actions
before this Court. 23Hence, this present petition.
TSCIEa

THE PETITION
The petitioner argues that the Ombudsman should have included the
respondents in the informations since it was their inspection reports that
actually paved the way for the commission of the alleged irregularities. 24 The
petitioner asserts that the respondents' criminal complicity clearly appears
since "no repair could have started" and "no payment for repairs, ghost or
not," could have been made without the respondents' pre-repair and postrepair inspection reports. By excluding the respondents in the informations,

the Ombudsman is engaged in "selective prosecution" which is a clear case of


grave abuse of discretion.
The petitioner claims that before the Ombudsman may avail of the
respondents as state witnesses, they must be included first in the informations
filed with the court. Thereafter, the Ombudsman can ask the court for their
discharge so that they can be utilized as state witnesses under the conditions
laid down in Section 17, Rule 119 of the Rules of Court since the court has
the "sole province" to determine whether these conditions exist.
These conditions require, inter alia, that there should be "absolute
necessity" for the testimony of the proposed witness and that he/she should
not appear to be the "most guilty." The petitioner claims that the respondents
failed to comply with these conditions as the Ombudsman's "evidence," which
became the basis of the informations subsequently filed, shows that the
respondents' testimony is not absolutely necessary; in fact, the manner of the
respondents' participation proves that they are the "most guilty" in the
premises.
THE COMMENTS OF THE OMBUDSMAN AND THE RESPONDENTS
The Ombudsman counters that RA No. 6770 (the Ombudsman Act of
1989) expressly grants him the power to grant immunity from prosecution to
witnesses. Given this power, the Ombudsman asserts that Section 17, Rule
119 of the Rules of Court,which presupposes that the witness is originally
included in the information, is inapplicable to the present case since the
decision on whom to prosecute is an executive, not a judicial, prerogative. 25
The Ombudsman invokes this Court's policy of non-interference in the
Ombudsman's exercise of his discretion in matters involving his investigatory
and prosecutorial powers. 26 The petitioner's claim that the respondents are
the "most guilty" is a matter of defense which the petitioner may raise not in
this proceeding, but in the trial proper. 27
EICScD

On the other hand, the respondents submit that the Ombudsman has
ample discretion in determining who should be included in the information on
the basis of his finding of probable cause. The courts can only interfere in the

Ombudsman's exercise of his discretion in case of a clear showing of grave


abuse of discretion, which the petitioner failed to establish. 28
THE PETITIONER'S REPLY

29

While conceding that the Ombudsman has the power and the discretion
to grant immunity to the respondents, the petitioner asserts that this power
must be exercised within the confines of Section 17, Rule 119 of the Rules of
Court which requires, inter alia, that the proposed witness must not appear to
be the "most guilty." By ignoring this provision and extending immunity to the
respondents whose false reports ultimately led to the payment for supposed
repairs, and who are, thus, the "real culprits," 30 the Ombudsman gravely
abused his discretion a fatal defect correctible by certiorari.
Amplifying on the respondents' "guilt," the petitioner cites the DPWH's
decision in an administrative case which the Civil Service Commission
affirmed, finding the respondents guilty of dishonesty and grave misconduct
involving the same set of facts. 31
OUR RULING
We dismiss the petition on two grounds: first, the petitioner did not avail
of the remedies available to him before filing this present petition;
and, second,within the context of the Court's policy of non-interference with
the Ombudsman's exercise of his investigatory and prosecutory powers, the
petitioner failed to establish that the grant of immunity to the respondents was
attended by grave abuse of discretion.
I. The

petitioner
remedies
available
course of law

did
in

not
the

exhaust
ordinary

As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus),


Rule 65 of the Rules of Court require, as a pre-condition for these remedies,
that there be no other plain, speedy and adequate remedy in the ordinary
course of law. In the present case, the petitioner has not shown that he moved
for a reconsideration of the assailed resolutions based substantially on the
same grounds stated in this present petition. 32 Neither did the petitioner file a
motion for the inclusion of the respondents in the informations before filing the

present petition. 33 These are adequate remedies that the petitioner chose to
forego; he bypassed these remedies and proceeded to seek recourse through
the present petition. 34
aACEID

Similarly, the petitioner has not shown that he filed the present petition
with this Court within the sixty-day reglementary period 35 from notice of the
assailed Ombudsman's resolutions. He did not do so, of course, since he
initially and erroneously filed a certiorari petition with the Sandiganbayan. We
remind the petitioner that the remedy from the Ombudsman's orders or
resolutions in criminal cases is to file a petition for certiorari under Rule
65 36 with this Court. 37
The petition likewise fails even on the merits.
II. The respondents' exclusion in the
informations is grounded on the
Ombudsman's grant of immunity
Mandamus is the proper remedy to compel the performance of a
ministerial duty imposed by law upon the respondent. 38 In matters involving
the exercise of judgment and discretion, mandamus may only be resorted to,
to compel the respondent to take action; it cannot be used to direct the
manner or the particular way discretion is to be exercised. 39
In the exercise of his investigatory and prosecutorial powers, the
Ombudsman is generally no different from an ordinary prosecutor in
determining who must be charged. 40 He also enjoys the same latitude of
discretion in determining what constitutes sufficient evidence to support a
finding of probable cause (that must be established for the filing of an
information in court) 41 and the degree of participation of those involved or the
lack thereof. His findings and conclusions on these matters are not ordinarily
subject to review by the courts except when he gravely abuses his
discretion, 42 i.e., when his action amounts to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law, or when he acts outside the
contemplation of law. 43
If,
on
the
basis
of
the
same
evidence,
the
Ombudsman arbitrarily excludes from an indictment some individuals while

impleading all others, the remedy ofmandamus lies 44 since he is duty-bound,


as a rule, to include in the information all persons who appear responsible for
the offense involved. 45
Citing the cases of Guiao v. Figueroa 46 and Castro, Jr., et al. v.
Castaeda and Liceralde, 47 the petitioner argues for the inclusion of the
respondents in the criminal informations, pointing out that the respondents
accomplished the inspection reports that allegedly set in motion the
documentary process in the repair of the DPWH vehicles; these reports led to
the payment by the government and the consequent losses.
cTIESa

In Guiao and Castro, we ruled that mandamus lies to compel a


prosecutor who refuses (i) to include in the information certain persons, whose
participation in the commission of a crime clearly appears, and (ii) to follow the
proper procedure for the discharge of these persons in order that they may be
utilized as prosecution witnesses.
These cited cases, however, did not take place in the same setting as
the present case as they were actions by the public prosecutor, not by the
Ombudsman. In the present case, the Ombudsman granted the respondents
immunity from prosecution pursuant to RA No. 6770 which specifically
empowers the Ombudsman to grant immunity "in any hearing, inquiry or
proceeding being conducted by the Ombudsman or under its authority, in the
performance or in the furtherance of its constitutional functions and statutory
objectives." The pertinent provision Section 17 of this law provides:
Sec. 17. Immunities. . . . .
Under such terms and conditions as it may determine, taking into
account the pertinent provisions of the Rules of Court, the
Ombudsman may grant immunity from criminal prosecution to any
person whose testimony or whose possession and production of
documents or other evidence may be necessary to determine the truth in
any hearing, inquiry or proceeding being conducted by the Ombudsman
or under its authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives. The immunity granted
under this and the immediately preceding paragraph shall not exempt the

witness from criminal prosecution for perjury or false testimony nor shall
he be exempt from demotion or removal from office. [emphasis ours]

To briefly outline the rationale for this provision, among the most
important powers of the State is the power to compel testimony from its
residents; this power enables the government to secure vital information
necessary to carry out its myriad functions. 48 This power though is not
absolute. The constitutionally-enshrined right against compulsory selfincrimination is a leading exception. The state's power to compel testimony
and the production of a person's private books and papers run against a solid
constitutional wall when the person under compulsion is himself sought to be
penalized. In balancing between state interests and individual rights in this
situation, the principles of free government favor the individual to whom the
state must yield. 49
A state response to the constitutional exception to its vast powers,
especially in the field of ordinary criminal prosecution and in law enforcement
and administration, is the use of an immunity statute. 50 Immunity statutes
seek a rational accommodation between the imperatives of an individual's
constitutional right against self-incrimination 51 (considered the fount from
which all statutes granting immunity emanate) 52 and the legitimate
governmental interest in securing testimony. 53 By voluntarily offering to give
information on the commission of a crime and to testify against the culprits, a
person opens himself to investigation and prosecution if he himself had
participated in the criminal act. To secure his testimony without exposing him
to the risk of prosecution, the law recognizes that the witness can be given
immunity from prosecution. 54 In this manner, the state interest is satisfied
while respecting the individual's constitutional right against self-incrimination.
III. Nature of the power to grant
immunity
The power to grant immunity from prosecution is essentially a legislative
prerogative. 55 The exclusive power of Congress to define crimes and their
nature and to provide for their punishment concomitantly carries the power to
immunize certain persons from prosecution to facilitate the attainment of state
interests, among them, the solution and prosecution of crimes with high

political, social and economic impact. 56 In the exercise of this power,


Congress possesses broad discretion and can lay down the conditions and
the extent of the immunity to be granted. 57
Early on, legislations granting immunity from prosecution were
few. 58 However, their number escalated with the increase of the need to
secure vital information in the course and for purposes of prosecution. These
statutes 59 considered not only the importance of the testimony sought, but
also the unique character of some offenses and of some situations where the
criminal participants themselves are in the best position to give useful
testimony. 60 RA No. 6770 or the Ombudsman Act of 1989 was formulated
along these lines and reasoning with the vision of making the Ombudsman the
protector of the people against inept, abusive and corrupt government officers
and employees. 61 Congress saw it fit to grant the Ombudsman the power to
directly confer immunity to enable his office to effectively carry out its
constitutional and statutory mandate of ensuring effective accountability in the
public service. 62
IV. Considerations
immunity

in

the

grant

While the legislature is the source of the power to grant immunity,


authority to implement is lodged elsewhere. The authority to choose
individual to whom immunity would be granted is a constituent part of
process and is essentially an executive function. Mapa, Jr.
Sandiganbayan 63 is instructive on this point:
The decision to grant immunity from prosecution forms a constituent part
of the prosecution process. It is essentially a tactical decision to forego
prosecution of a person for government to achieve a higher objective. It
is a deliberate renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its justification lies in
the particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the
law. Whether or not the delicate power should be exercised, who
should be extended the privilege, the timing of its grant, are
questions addressed solely to the sound judgment of the
prosecution. The power to prosecute includes the right to

of
the
the
the
v.

determine who shall be prosecuted and the corollary right to decide


whom not to prosecute. In reviewing the exercise of prosecutorial
discretion in these areas, the jurisdiction of the respondent court is
limited. For the business of a court of justice is to be an impartial
tribunal, and not to get involved with the success or failure of the
prosecution to prosecute. Every now and then, the prosecution may err
in the selection of its strategies, but such errors are not for neutral courts
to rectify, any more than courts should correct the blunders of the
defense. [emphasis ours]
aTCAcI

RA No. 6770 fully recognizes this prosecutory prerogative by


empowering the Ombudsman to grant immunity, subject to "such terms and
conditions" as he may determine. The only textual limitation imposed by law
on this authority is the need to take "into account the pertinent provisions of
the Rules of Court," i.e., Section 17, Rule 119 of the Rules of Court. 64 This
provision requires that:
(a) There is absolute necessity for the testimony of the accused whose
discharge is requested;
(b) There is no other direct evidence available for the proper prosecution
of the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its
material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.

This Rule is itself unique as, without detracting from the executive
nature of the power to prosecute and the power to grant immunity, it clarifies
that in cases already filed with the courts, 65 the prosecution merely makes a
proposal and initiates the process of granting immunity to an accused-witness
in order to utilize him as a witness against his co-accused. 66 As we explained
in Webb v. De Leon 67 in the context of the Witness Protection, Security and
Benefit Act:

The right to prosecute vests the prosecutor with a wide range of


discretion the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best
appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981vesting in the
Department of Justice the power to determine who can qualify as a
witness in the program and who shall be granted immunity from
prosecution. Section 9 of Rule 119 does not support the proposition that
the power to choose who shall be a state witness is an inherent judicial
prerogative. Under this provision, the court is given the power to
discharge a state witness only because it has already acquired
jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. [emphasis ours]

Thus, it is the trial court that determines whether the prosecution's preliminary
assessment of the accused-witness' qualifications to be a state witness
satisfies the procedural norms. 68 This relationship is in reality a symbiotic one
as the trial court, by the very nature of its role in the administration of
justice, 69 largely exercises its prerogative based on the prosecutor's findings
and evaluation. On this point, the Court's pronouncement in the 1918 case
of United States v. Abanzado 70 is still very much relevant:
aDHCAE

A trial judge cannot be expected or required to inform himself with


absolute certainty at the very outset of the trial as to everything which
may be developed in the course of the trial in regard to the guilty
participation of the accused in the commission of the crime charged in
the complaint. If that were practicable or possible there would be little
need for the formality of a trial. He must rely in large part upon the
suggestions and the information furnished by the prosecuting officer in
coming to his conclusions as to the "necessity for the testimony of the
accused whose discharge is requested"; as to the availability or
nonavailability of other direct or corroborative evidence; as to which of
the accused is "most guilty," and the like.

Notably, this cited case also observes that the Rules-provided


guidelines are mere express declarations of the conditions which the courts
ought to have in mind in exercising their sound discretion in granting the
prosecution's motion for the discharge of an accused. 71 In other words, these
guidelines are necessarily implied in the discretion granted to the courts.
RA No. 6770 recognizes that these same principles should apply when
the Ombudsman directly grants immunity to a witness. The same
consideration to achieve the greater and higher purpose of securing the
conviction of the most guilty and the greatest number among the
accused 72 is involved whether the grant is secured by the public
prosecutor with active court intervention, or by the Ombudsman. If there is any
distinction at all between the public prosecutor and the Ombudsman in this
endeavor, it is in the specificity of and the higher priority given by law to the
Ombudsman's purpose and objective to focus on offenses committed by
public officers and employees to ensure accountability in the public service.
This accounts for the Ombudsman's unique power to grant immunity by itself
and even prior to the filing of information in court, a power that the public
prosecutor himself generally does not enjoy. 73
V. Extent of judicial review of a
bestowed immunity
An immunity statute does not, and cannot, rule out a review by this
Court of the Ombudsman's exercise of discretion. Like all other officials under
our constitutional scheme of government, all their acts must adhere to the
Constitution. 74 The parameters of our review, however, are narrow. In the first
place, what we review are executive acts of a constitutionally independent
Ombudsman. 75 Also, we undertake the review given the underlying reality
that this Court is not a trier of facts. Since the determination of the
requirements under Section 17, Rule 119 of the Rules of Court is highly
factual in nature, the Court must, thus, generally defer to the judgment of the
Ombudsman who is in a better position (than the Sandiganbayan or the
defense) to know the relative strength and/or weakness of the evidence
presently in his possession and the kind, tenor and source of testimony he
needs to enable him to prove his case. 76 It should not be forgotten, too, that

the grant of immunity effectively but conditionally results in the extinction of


the criminal liability the accused-witnesses might have incurred, as defined in
the terms of the grant. 77 This point is no less important as the grant directly
affects the individual and enforces his right against self-incrimination. These
dynamics should constantly remind us that we must tread softly, but not any
less critically, in our review of the Ombudsman's grant of immunity.
CTIDcA

From the point of view of the Court's own operations, we are


circumscribed by the nature of the review powers granted to us under the
Constitution and the Rules of Court. We rule on the basis of a petition
for certiorari under Rule 65 and address mainly the Ombudsman's exercise of
discretion. Our room for intervention only occurs when a clear and grave
abuse of the exercise of discretion is shown. Necessarily, this limitation
similarly reflects on the petitioner who comes to us on the allegation of grave
abuse of discretion; the petitioner himself is bound to clearly and
convincingly establish that the Ombudsman gravely abused his
discretion in granting immunity in order to fully establish his case. 78
As a last observation, we note the unique wording of the grant of the
power of immunity to the Ombudsman. It is not without significance that the
law encompassed (and appears to have pointedly not separated) the
consideration of Section 17, Rule 119 of the Rules of Court within the broader
context of "such terms and conditions as the Ombudsman may determine."
This deliberate statutory wording, to our mind, indicates the intent to define the
role of Section 17, Rule 119 in the Ombudsman's exercise of discretion. It
suggests a broad grant of discretion that allows the Ombudsman's
consideration of factors other than those outlined under Section 17, Rule 119;
the wording creates the opening for the invocation, when proper, of the
constitutional and statutory intents behind the establishment of the
Ombudsman.
Based on these considerations, we shall now proceed to determine
whether the petitioner has clearly and convincingly shown that the
Ombudsman gravely abused his discretion in granting immunity to the
respondents.

Va. Absolute necessity for


testimony of the respondents
Under the factual and legal situation before us, we find that the
petitioner miserably failed to clearly and convincingly establish that the
Ombudsman gravely abused his discretion in granting immunity to the
respondents. While he claims that both conditions (a) and (d) of Section 17,
Rule 119 of the Rules of Court are absent, we observe his utter lack of
argument addressing the "absolute necessity" of the respondents' testimony.
In fact, the petitioner simply concluded that the requirement of "absolute
necessity" does not exist based on the Ombudsman's "evidence," without
even attempting to explain how he arrived at this conclusion.
TEaADS

We note in this regard that the respondents' proposed testimony tends


to counteract the petitioner's personal defense of good faith (i.e., that he had
no actual participation and merely relied on his subordinates) in approving the
job orders and in his concurrence with the inspection reports. In their Joint
Counter-Affidavit, the respondents narrated the accused DPWH
officials/employees' flagrant disregard of the proper procedure and the
guidelines in the repair of DPWH service vehicles which culminated in losses
to the government. Particularly telling is the respondents' statement that a
number of pre-repair inspection reports for a particular month in 2001 bear the
petitioner's signature despite the fact that these reports are not supported by
findings from the respondents as SIT members. 79This kind of statement
cannot but impact on how the Ombudsman viewed the question of "absolute
necessity" of the respondents' testimony since this testimony meets the
defense of good faith head-on to prove the prosecution's allegations. Under
these circumstances, we cannot preempt, foreclose, nor replace with our own
the Ombudsman's position on this point as it is clearly not without basis.
Vb. The respondents do not appear
to be the "most guilty"
Similarly, far from concluding that the respondents are the "most guilty,"
we find that the circumstances surrounding the preparation of the inspection
reports can significantly lessen the degree of the respondents' criminal
complicity in defrauding the government. Again, this is a matter that the

Ombudsman, in the exercise of his discretion, could not have avoided when
he considered the grant of immunity to the respondents.
We note, too, that while the petitioner incessantly harped on the
respondents' role in the preparation of the inspection reports, yet, as head of
the SIT, he was eerily silent on the circumstances surrounding this
preparation, particularly on the respondents' explanation that they tried "to
curb the anomalous practices" 80 in the DPWH. We are aware, of course, that
the present petition merely questions the immunity granted to the respondents
and their consequent exclusion from the informations; it does not assail the
finding of probable cause against the petitioner himself. This current reality
may explain the petitioner's silence on the respondents' assertions; the
respondents' allegations, too, still have to be proven during the trial. However,
these considerations are not sufficient to save the petitioner from the necessity
of controverting the respondents' allegations, even for the limited purpose of
the present petition, since his counter-assertion on this basic ground (that the
respondents bear the most guilt) is essential and critical to the viability of his
petition.
In considering the respondents' possible degree of guilt, we are keenly
aware of their admission that they resorted to a "short-cut" 81 in the procedure
to be observed in the repairs and/or purchase of emergency parts of DPWH
service vehicles. To our mind, however, this admission does not necessarily
result in making the respondents the "most guilty" in the premises; not even a
semblance of being the "most guilty" can be deduced therefrom.
ECSHID

In sum, the character of the respondents' involvement vis- -vis the


crimes filed against the DPWH officials/employees, coupled with the
substance of the respondents' disclosures, compels this Court to take a dim
view of the position that the Ombudsman gravely abused his discretion in
granting immunity to the respondents. The better view is that the Ombudsman
simply saw the higher value of utilizing the respondents themselves as
witnesses instead of prosecuting them in order to fully establish and
strengthen its case against those mainly responsible for the criminal act, as
indicated by the available evidence.

VI. The respondents' administrative


liability has no bearing at all on
the immunity granted to the
respondents
The fact that the respondents had previously been found
administratively liable, based on the same set of facts, does not necessarily
make them the "most guilty." An administrative case is altogether different
from a criminal case, such that the disposition in the former does not
necessarily result in the same disposition for the latter, although both may
arise from the same set of facts. 82 The most that we can read from the finding
of liability is that the respondents have been found to be administratively guilty
by substantial evidence the quantum of proof required in an administrative
proceeding. The requirement of the Revised Rules of Criminal Procedure
(which RA No. 6770 adopted by reference) that the proposed witness should
not appear to be the "most guilty" is obviously in line with the character 83 and
purpose 84 of
a
criminal
proceeding,
and
the
much
stricter
standards 85 observed in these cases. They are standards entirely different
from those applicable in administrative proceedings.
VII. The policy of non-interference
with the Ombudsman's
investigatory and prosecutory
powers cautions a stay of judicial
hand
The Constitution and RA No. 6770 have endowed the Office of the
Ombudsman with a wide latitude of investigatory and prosecutory powers,
freed, to the extent possible within our governmental system and structure,
from legislative, executive, or judicial intervention, and insulated from outside
pressure and improper influence. 86 Consistent with this purpose and subject
to the command of paragraph 2, Section 1, Article VIII of the 1987
Constitution, 87 the Court reiterates its policy of non-interference with the
Ombudsman's exercise of his investigatory and prosecutory powers (among
them, the power to grant immunity to witnesses), 88 and respects the initiative
and independence inherent in the Ombudsman who, "beholden to no one,

acts as the champion of the people and the preserver of the integrity of the
public service." 89 Ocampo IV v. Ombudsman 90 best explains the reason
behind this policy:
The rule is based not only upon respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of
the courts will be grievously hampered by innumerable petitions
assailing the dismissal of investigatory proceedings conducted by the
Office of the Ombudsman with regard to complaints filed before it, in
much the same way that the courts would be extremely swamped if they
could be compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by a private complainant.
DCcIaE

Following this policy, we deem it neither appropriate nor advisable to interfere


with the Ombudsman's grant of immunity to the respondents, particularly in
this case, where the petitioner has not clearly and convincingly shown the
grave abuse of discretion that would call for our intervention.
WHEREFORE, the petition is hereby DISMISSED. Costs against the petitioner.
SO ORDERED.
|||

(Quarto v. Marcelo, G.R. No. 169042, [October 5, 2011], 674 PHIL 370-404)

5.
[G.R. No. 196842. October 9, 2013.]
ALFREDO ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF
THE
OMBUDSMAN
(MINDANAO)
[and]
ROSA
S.
BUSUEGO, respondents.
DECISION

PEREZ, J :
p

Before us is a petition for certiorari seeking to annul and set aside the Resolution
of the Ombudsman dated 17 April 2009 1 and Order dated 11 October
2010, 2 which directed the filing of an Information for Concubinage under Article
334 of the Revised Penal Code against petitioner Alfredo Romulo A. Busuego
(Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation
of Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and
(3) Grave Threats under Article 282 of the Revised Penal Code, before the Office
of the Ombudsman against her husband, Alfredo, with designation Chief of
Hospital, Davao Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao
City. Their union was blessed with two (2) sons, Alfred and Robert, born in 1976
and 1978, respectively.
AHDcCT

Sometime in 1983, their marriage turned sour. At this time, Rosa unearthed
photographs of, and love letters addressed to Alfredo from, other women. Rosa
confronted Alfredo who claimed ignorance of the existence of these letters and
innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He
would come home late at night on weekdays and head early to work the next day;
his weekends were spent with his friends, instead of with his family. Rosa
considered herself lucky if their family was able to spend a solid hour with
Alfredo.
Around this time, an opportunity to work as nurse in New York City, United States
of America (US) opened up for Rosa. Rosa informed Alfredo, who vehemently
opposed Rosa's plan to work abroad. Nonetheless, Rosa completed the

necessary requirements to work in the US and was scheduled to depart the


Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained
opposed to her working abroad. Furious with Rosa's pressing, Alfredo took his
loaded gun and pointed it at Rosa's right temple, threatening and taunting Rosa
to attempt to leave him and their family. Alfredo was only staved off because
Rosa's mother arrived at the couple's house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in
the US, Rosa became homesick and was subsequently joined by her children
who were brought to the US by Alfredo. Rosa singularly reared them: Alfred, from
grade school to university, while Robert, upon finishing high school, went back to
Davao City to study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial
support. In fact, it was Rosa who would remit money to Alfredo from time to time,
believing that Alfredo had stopped womanizing. Rosa continued to spend her
annual vacation in Davao City.
CDHcaS

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their
conjugal home. When Rosa asked Alfredo, the latter explained that Sia was a
nurse working at the Regional Hospital in Tagum who was in a sorry plight as she
was allegedly being raped by Rosa's brother-in-law. To get her out of the
situation, Alfredo allowed Sia to live in their house and sleep in the maids'
quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredo's extra-marital relationships.
Robert, who was already living in Davao City, called Rosa to complain of
Alfredo's illicit affairs and shabby treatment of him. Rosa then rang up Alfredo
which, not surprisingly, resulted in an altercation.
Robert executed an affidavit, corroborating his mother's story and confirming his
father's illicit affairs:

1. In varying dates from July 1997 to January 1998, Robert found it


strange that Sia slept with his father in the conjugal
bedroom.
2. He did not inform his mother of that odd arrangement as he did
not want to bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was
Alfredo's mistress.
4. During this period of concubinage, Sia was hospitalized and
upon her discharge, she and Alfredo resumed their
cohabitation.
5. The relationship between Alfredo and Sia ended only when the
latter found another boyfriend.
6. His father next took up an affair with Julie de Leon (de Leon)
whom Robert met when de Leon fetched Alfredo on one
occasion when their vehicle broke down in the middle of the
road.
STECAc

7. Robert read various Short Message Service (SMS) exchanges


between Julie and Alfredo on Alfredo's mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa's
and Alfredo's conjugal dwelling and stayed in the conjugal
room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise
executed a joint affidavit in support of Rosa's allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the
conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the two's
sexual relationship.

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the


conjugal dwelling and slept overnight with Alfredo in the
conjugal room.
As a result, Rosa and their other son Alfred forthwith flew to Davao City without
informing Alfredo of their impending return. Upon Rosa's return, she gathered
and consolidated information on her husband's sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats,
Rosa averred that during the course of their marriage, apart from the marital
infidelity, Alfredo physically and verbally abused her and her family. On one
occasion after Rosa confirmed the affairs, Alfredo threatened their family,
including other members of their household that he will gun them down should he
chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly
dismissed househelper Liza Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against him
and alleged that:
DAETcC

1. Rosa, despite his pleas for them to remain and raise their family
in the Philippines, chose to live in the US, separate from him.
2. Rosa's allegations that he had kept photographs of, and love
letters from, other women, were only made to create a cause
of action for the suit for Legal Separation which Rosa filed
sometime in 1998.
3. It was highly improbable that he committed acts of concubinage
with Sia and de Leon since from the time he became Chief of
Hospital of the Davao Regional Hospital in Tagum City, he
practically stayed all days of the work week in the hospital.
The instances he went home were few and far between, only
to check on the house and provide for household expenses.
4. When Robert returned to Davao City and lived with him, it
became more impossible for him to have shacked up with
Sia and de Leon in the conjugal dwelling.

5. With respect to his alleged relationship with Sia, without


admitting to anything, that Sia, for a time, may have lived in
his and Rosa's conjugal house, staying at the maids'
quarters. However, at no instance did he keep Sia as his
mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31, 2004
when he supposedly stayed with de Leon in the conjugal
room, Alfredo pointed out that said dates were busiest days
of the year in the hospital where his presence as Chief of
Hospital is most required.
7. By Rosa's own admission, she first learned of Alfredo's alleged
concubinage in 1997, and yet she still continued with her
yearly visits to Alfredo in Davao City. Those instances ought
to be construed as condonation of the concubinage.
CEDHTa

8. Significantly, the alleged concubines, Sia and de Leon, were not


impleaded along with Alfredo as party-respondents in the
complaint in violation of Article 344 of the Revised Penal
Code.
Alfredo made short shrift of Rosa's charges of violation of Republic Act No.
9262 and Grave Threats. He claimed that, at no time, did he threaten, the lives or,
to harm his wife, their family and members of their household. He only berated
the help for perpetrating gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained Alfredo's
culpability, and naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosa's failure to implead Sia and
de Leon as respondents cropped up. Alfredo insisted that Rosa's complaint ought
to be dismissed for failure to implead his alleged concubines as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory
hearing where both Rosa and Alfredo were represented by their respective
counsels:

. . . [Rosa] was apprised of the need to implead the two alleged


mistresses in the complaint for Concubinage pursuant to Article 344 of
the Revised Penal Code.Although [Alfredo] objected to the amendment
of the complaint, at this point in time, due to the alleged procedural
lapse committed by [Rosa], this Office explained to the parties that the
position of [Alfredo] would just prolong the conduct of the preliminary
investigation since [Rosa] can just re-file [her] complaint. The doctrine
of res judicata does not apply in the preliminary investigation [stage].
Hence, the counsel for [Rosa] was directed to submit to this Office the
addresses of the alleged mistresses so that they could be served with
the Order directing them to file their counter-affidavits.
HaDEIc

[Rosa] submitted an Ex-Parte Manifestation on the last known addresses


of Julie de Leon and Emy Sia. . . . . 3

On 24 June 2008, the Ombudsman issued a Joint Order 4 impleading Sia and de
Leon as party-respondents in the complaint for Concubinage and directing them
to submit their respective counter-affidavits within a period of time. Copies of the
Joint Order were mailed to Sia's and de Leon's last known addresses, as
provided by Rosa to the Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a copy of the
Joint Order sent to Sia's last known address was returned to the Ombudsman
with the notation on the Registry Return Receipt No. 1624 "Return to Sender;
removed," while a copy thereof to de Leon was received on 3 September 2008 by
Ananias de Leon. 5
Apparently still opposed to the Ombudsman's ruling to simply amend the
complaint and implead therein Alfredo's alleged mistresses, Alfredo filed his
Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the
charges to the Appropriate Provincial/City Prosecutor 6 praying for dismissal of
the complaint for: (1) failure to implead the two mistresses in violation of Article
344 of the Revised Penal Code; and in the alternative, (2) referral of the
complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular
No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed Resolution,


disposing of the procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent
need to resolve the ancillary issues raised by [petitioner] Dr. Busuego on:
1.) the alleged legal infirmity of [Rosas's] initiatory pleading by resorting
to a procedural short cut which would result to the delay in the
disposition of this case; and 2.) the criminal charges imputed are not in
relation to office, hence, the Office of the Provincial/City Prosecutor shall
investigate and prosecute this case pursuant to OMB-DOJ Joint Circular
No. 95-001, Series of 1995.
TICDSc

On the first issue, this Office observed that [Busuego] had already
pointed out in his counter-Affidavit the alleged deficiency in the
complaint. [Rosa] also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She averred
that this Office is empowered to investigate and prosecute any act or
omission of a public official or employee to the exclusion of nongovernment employees. She stated that the inclusion of the alleged
concubines in the Information to be filed in court is a matter of
procedure, within the competence of the investigating prosecutor.
In order to clarify some matters, including the said issue, with the parties,
the clarificatory hearing was conducted. It was explained in the said
hearing the need to implead the alleged concubines in this case
pursuant to Article 344 of the Revised Penal Code and to obviate the
proceedings, [Rosa] was directed to submit the addresses of the alleged
concubines. [Busuego's] position that the said short cut procedure would
delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, [Rosa] could still amend [her] complaint and refile this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings.
On the second issue, the motion of [Busuego] to refer this case to the
Office of the City Prosecutor was belatedly filed. Record would show that
the motion praying for the referral of this case to the Office of the City
Prosecutor was filed on 17 July 2008, after the parties have already filed
all their pleadings and the case is now ripe for resolution. Further,

referral to the said office is not mandatory as cited in the said Joint
Circular. 7

In the same Resolution, the Ombudsman, ultimately, found probable cause to


indict only Alfredo and Sia of Concubinage and directed the filing of an
Information against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima
facie case for violation of Article 334 of the Revised Penal
Code (concubinage) and that [petitioner] ALFREDO ROMULO
BUSUEGO y ABRIO, and EMY SIA, are probably guilty thereof.
TIADCc

Let the herewith Information be filed in the appropriate court.


The charges for: 1.) Concubinage against Alfredo Romulo Busuego y
Abrio and Julie de Leon; 2.) Grave Threats against Alfredo Romulo y
Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women and
Children Act), are hereby DISMISSED for lack of merit. 8

Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman's


ruling on the automatic inclusion of Sia as respondent in the complaint and their
indictment for the crime of Concubinage. Alfredo is adamant that Rosa's
complaint should have, at the outset, impleaded his alleged concubines. Failing
such, the Ombudsman cannot resort to automatic inclusion of party-respondents,
erroneously finding him and Sia prima facie culpable for Concubinage. For good
measure, Alfredo pointed out that from Rosa's own allegations, she had
condoned or pardoned Alfredo's supposed concubinage. Alfredo likewise
submitted Liza S. Diambangan's affidavit, recanting her previous affidavit
corroborating Rosa's charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial
Motion for Reconsideration was filed out of time, and gave scant attention to Liza
S. Diambangan's affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for
Reconsideration is hereby DENIED. The findings in the questioned
Resolution hereby remains undisturbed. Let the Information for
Concubinage be filed in the proper court against herein [Busuego]. 9

Alfredo now comes to us on petition for certiorari alleging grave abuse of


discretion in the Ombudsman's finding of probable cause to indict him and Sia for
Concubinage. Alfredo's badges of grave abuse of discretion are the following:
ScAHTI

1. The Ombudsman railroaded the inclusion of Sia and de Leon as


party-respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department
of Justice, considering that the offense of Concubinage is not
committed in relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosa's condonation of Alfredo's
supposed Concubinage when she alleged in the complaint
that she had known of Alfredo's womanizing and believed
him to have changed his ways;
4. The Ombudsman did not take into consideration the affidavit of
recantation of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia
for Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of probable
cause during a preliminary investigation. 10 This is the reason why judicial review
of the resolution of the Ombudsman in the exercise of its power and duty to
investigate and prosecute felonies and/or offenses of public officers is limited to a
determination of whether there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction. Courts are not empowered to substitute their
judgment for that of the Ombudsman. 11
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction. 12 The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility. 13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion.
HDAaIc

First. Alfredo insists that the Ombudsman's automatic inclusion, over his
vehement objections of Sia and de Leon as party-respondents, violates Article
344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of
Court,which respectively provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. The crimes of adultery
and concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse.
The offended party cannot institute criminal prosecution without including
both the guilty parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders.
Section 5. Who must prosecute criminal action. . . . .
The crimes of adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse. The offended party
cannot institute criminal prosecution without including the guilty parties, if
both are alive, nor, in any case, if the offended party has consented to
the offense or pardoned the offenders.

We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely
followed the provisions of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxx xxx xxx
Section 2. Evaluation. Upon evaluating the complaint,
investigating officer shall recommend whether it may be:

the

a) dismissed outright for want of palpable merit;


b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has
jurisdiction over the case;

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


investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxx xxx xxx
Section 4. Procedure. The preliminary investigation of cases falling
under the jurisdiction of the Sandiganbayan and Regional Trial Courts
shall be conducted in the manner prescribed in Section 3, Rule 112 of
the Rules of Court,subject to the following provisions:
a) . . .
b) After such affidavits have been secured, the investigating officer
shall issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondents to submit, within ten
(10) days from receipt thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of
the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the investigating
officer may consider the comment filed by him, if any, as his answer to
the complaint. In any event, the respondent shall have access to the
evidence on record.
cAaDHT

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


jurisdiction. Neither may a motion for a bill of particulars be
entertained. If respondent desires any matter in the complainant's
affidavit to be clarified, the particularization thereof may be done
at the time of the clarificatory questioning in the manner provided
in paragraph (f) of this section.
e) If the respondents cannot be served with the order mentioned in
paragraph 6 hereof, or having been served, does not comply therewith,
the complaint shall be deemed submitted for resolution on the basis of
the evidence on the record.

f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct
a clarificatory hearing during which the parties shall be afforded
the opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the
clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party
shall be reduced into writing and served on the witness concerned who
shall be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the
investigating officer shall forward the records of the case together with
his resolution to the designated authorities for their appropriate action
thereon.
No information may be filed and no complaint may be dismissed without
the written authority or approval of the ombudsman in cases falling within
the jurisdiction of the Sandiganbyan, or of the proper Deputy
Ombudsman in all other cases. (Emphasis supplied).

Notably, Rosa's complaint contained not just the Concubinage charge, but other
charges: violation of Republic Act No. 9262 and Grave Threats. Upon the
Ombudsman's perusal, the complaint was supported by affidavits corroborating
Rosa's accusations. Thus, at that stage, the Ombudsman properly referred the
complaint to Alfredo for comment. Nonetheless, while the Ombudsman found no
reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to
discuss the applicability of Article 344 of the Revised Penal Code, the issue
having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for
comment and thereafter the holding of a clarificatory hearing is provided for in
paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which we
have at the outset underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said issue, with the parties,
the clarificatory hearing was conducted. It was explained in the said
hearing the need to implead the alleged concubines in this case

pursuant to Article 344 of the Revised Penal Code and to obviate the
proceedings, [Rosa] was directed to submit the addresses of the alleged
concubines. [Busuego's] position that the said short cut procedure would
delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, [Rosa] could still amend [her] complaint and refile this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings. 14

The Ombudsman merely facilitated the amendment of the complaint to cure the
defect pointed out by Alfredo. We agree with the Ombudsman that it would be
superfluous to dismiss the complaint when amendment thereof is allowed by its
Rules of Procedure 15 and the Rules of Court. 16
HcACTE

Second. Alfredo claims that the Ombudsman should have referred Rosa's
complaint to the Department of Justice (DOJ), since the crime of Concubinage is
not committed in relation to his being a public officer. This is not a new argument.
The Ombudsman's primary jurisdiction, albeit concurrent with the DOJ, to
conduct preliminary investigation of crimes involving public officers, without
regard to its commission in relation to office, had long been settled in Sen.
Honasan II v. The Panel of Investigating Prosecutors of DOJ, 17 and affirmed in
subsequent cases:
[T]he Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to
the Ombudsman exclusive jurisdiction to investigate offenses
committed by public officers or employees. The authority of the
Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting
any investigation of cases against public officers involving violations of
penal laws but if the cases fall under the exclusive jurisdiction of the

Sandiganbayan, the respondent Ombudsman may, in the exercise of its


primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the
DOJ have concurrent jurisdiction to conduct preliminary investigation, the
respective heads of said offices came up with OMB-DOJ Joint Circular
No. 95-001 for the proper guidelines of their respective prosecutors in
the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS
OF THE OFFICE OF THE OMBUDSMAN
TO:

ALL

REGIONAL STATE PROSECUTORS AND THEIR


ASSISTANTS, PROVINCIAL/CITY PROSECUTORS
AND THEIR ASSISTANTS, STATE PROSECUTORS
AND
PROSECUTING
ATTORNEYS
OF
THE
DEPARTMENT OF JUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC


OFFICERS AND EMPLOYEES, THE CONDUCT OF
PRELIMINARY INVESTIGATION, PREPARATION OF
RESOLUTIONS
AND
INFORMATIONS
AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY
PROSECUTORS AND THEIR ASSISTANTS.
aESHDA

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and


the DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for assistance
in the investigation and prosecution of criminal cases cognizable by his
office and the conditions under which he may do so. Also discussed
was Republic Act No. 7975 otherwise known as "AN ACT TO
STRENGTHEN
THE
FUNCTIONAL
AND
STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its
implications on the jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused


by discussions on jurisdiction between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by procedural
conflicts in the filing of complaints against public officers and employees,
the conduct of preliminary investigations, the preparation of resolutions
and informations, and the prosecution of cases by provincial and city
prosecutors and their assistants as DEPUTIZED PROSECUTORS OF
THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, in a series of consultations, have agreed
on the following guidelines to be observed in the investigation and
prosecution of cases against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by
public officers and employees IN RELATION TO OFFICE whether
cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN or with the
OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under
the control and supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional mandate finds
reason to believe otherwise, offenses NOT IN RELATION TO OFFICE
and cognizable by the REGULAR COURTS shall be investigated and
prosecuted by the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR, which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation.
Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the
appropriate approving authority.
DcSACE

4. Considering that the OFFICE OF THE OMBUDSMAN has


jurisdiction over public officers and employees and for effective
monitoring of all investigations and prosecutions of cases involving
public officers
and
employees, the
OFFICE OF
THE
PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF
THE OMBUDSMAN a monthly list of complaints filed with their
respective offices against public officers and employees.

xxx xxx xxx


A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the
Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure on Preliminary Investigation, effective December 1, 2000, to
wit:
SEC.
2. Officers
investigations.

authorized

to

conduct

preliminary

The following may conduct preliminary investigations:


(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include
all crimes cognizable by the proper court in their respective
territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. If
the investigating prosecutor finds cause to hold the respondent for
trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
AaITCS

Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of

offenses cognizable by the Sandiganbayan in the exercise of its


original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the
parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of
the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation,
or to dismiss or move for dismissal of the complaint or information
with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office
of the Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary
investigation of criminal complaints filed with them for offenses
cognizable by the proper court within their respective territorial
jurisdictions, including those offenses which come within the original
jurisdiction of the Sandiganbayan; but with the qualification that in
offenses falling within the original jurisdiction of the Sandiganbayan,
the prosecutor shall, after their investigation, transmit the records and
their resolutions to the Ombudsman or his deputy for appropriate
action. Also, the prosecutor cannot dismiss the complaint without the

prior written authority of the Ombudsman or his deputy, nor can the
prosecutor file an Information with the Sandiganbayan without being
deputized by, and without prior written authority of the Ombudsman or
his deputy.
xxx xxx xxx
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or
their assistants, either in their regular capacities or as deputized
Ombudsman prosecutors. The fact that all prosecutors are in effect
deputized Ombudsman prosecutors under the OMB-DOJ circular is a
mere superfluity. The DOJ Panel need not be authorized nor deputized
by the Ombudsman to conduct the preliminary investigation for
complaints filed with it because the DOJ's authority to act as the principal
law agency of the government and investigate the commission of crimes
under the Revised Penal Code is derived from the Revised
Administrative Code which had been held in theNatividad case [citation
omitted] as not being contrary to the Constitution. Thus, there is not even
a need to delegate the conduct of the preliminary investigation to an
agency which has the jurisdiction to do so in the first place. However, the
Ombudsman may assert its primary jurisdiction at any stage of the
investigation. (Emphasis supplied).
DSEaHT

In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer
who was charged with coup d'etat for the occupation of Oakwood on 27 July
2003, the preliminary investigation therefor was conducted by the DOJ. Honasan
questioned the jurisdiction of the DOJ to do so, proferring that it was the
Ombudsman which had jurisdiction since the imputed acts were committed in
relation to his public office. We clarified that the DOJ and the Ombudsman have
concurrent jurisdiction to investigate offenses involving public officers or
employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of
its primary jurisdiction over cases cognizable by the Sandiganbayan, may take
over, at any stage, from any investigating agency of the government, the
investigation of such cases. Plainly, applying that ruling in this case, the
Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over
Rosa's complaint, and after choosing to exercise such jurisdiction, need

not defer to the dictates of a respondent in a complaint, such as Alfredo. In


other words, the Ombudsman may exercise jurisdiction to the exclusion of the
DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having
admitted to knowing of his womanizing and yet continuing with their relationship
as demonstrated in Rosa's annual visits to him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of whether the wife
condoned the concubinage lies in the wife's "line of conduct under the
assumption that [she] really believed [her husband] guilty of [concubinage]:"
Condonation is the forgiveness of a marital offense constituting a ground
for legal separation or, as stated in I Bouver's Law Dictionary, p. 585,
condonation is the 'conditional forgiveness or remission, by a husband or
wife of a matrimonial offense which the latter has committed.'
xxx xxx xxx
A detailed examination of the testimony of the plaintiff-husband,
especially those portions quoted above, clearly shows that there was a
condonation on the part of the husband for the supposed 'acts of rank
infidelity amounting to adultery' committed by defendant-wife. Admitting
for the sake of argument that the infidelities amounting to adultery were
committed by the defendant, a reconciliation was effected between her
and the plaintiff. The act of the latter in persuading her to come along
with him, and the fact that she went with him and consented to be
brought to the house of his cousin Pedro Bugayong and together they
slept there as husband and wife for one day and one night, and the
further fact that in the second night they again slept together in their
house likewise as husband and wife all these facts have no other
meaning in the opinion of this court than that a reconciliation between
them was effected and that there was a condonation of the wife by the
husband. The reconciliation occurred almost ten months after he came
to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been
held that 'condonation is implied from sexual intercourse after knowledge

of the other infidelity. Such acts necessarily implied forgiveness. It is


entirely consonant with reason and justice that if the wife freely consents
to sexual intercourse after she has full knowledge of the husband's guilt,
her consent should operate as a pardon of his wrong.'
In Tiffany's Domestic and Family Relations, section 107 says:
'Condonation. Is the forgiveness of a marital offense constituting a
ground for divorce and bars the right to a divorce. But it is on the
condition, implied by the law when not express, that the wrongdoer shall
not again commit the offense; and also that he shall thereafter treat the
other spouse with conjugal kindness. A breach of the condition will revive
the original offense as a ground for divorce. Condonation may be
express or implied.'
It has been held in a long line of decisions of the various supreme courts
of the different states of the U.S. that 'a single voluntary act of sexual
intercourse by the innocent spouse after discovery of the offense is
ordinarily sufficient to constitute condonation, especially as against the
husband'. (27 Corpus Juris Secundum, section 61 and cases cited
therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal
provisions above quoted, and of the various decisions above-cited, the
inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We
agree with the trial judge that the conduct of the plaintiff-husband above
narrated despite his belief that his wife was unfaithful, deprives him, as
alleged the offended spouse, of any action for legal separation against
the offending wife, because his said conduct comes within the restriction
of Article 100 of the Civil Code.
EcAHDT

The only general rule in American jurisprudence is that any cohabitation


with the guilty party, after the commission of the offense, and with the
knowledge or belief on the part of the injured party of its commission, will
amount to conclusive evidence of condonation; but this presumption may
be rebutted by evidence (60 L. J. Prob. 73).18

Although the foregoing speaks of condonation of concubinage as a ground for


legal separation, the holding therein applies with equal force in a prosecution for

concubinage as a felony. Indeed, Rosa's admission was that she believed her
husband had stopped womanizing, not that she had knowledge of Alfredo's
specific acts of concubinage with Sia and de Leon, specifically keeping them in
the conjugal dwelling. This admission set against the specific acts of
concubinage listed in Article 334 19of the Revised Penal Code does not amount
to condonation. Their continued cohabitation as husband and wife construed
from Rosa's annual visits to Davao City is not acquiescence to Alfredo's relations
with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or
condonation. It is true that the offended party has to a considerable
extent been patient with her husband's shortcomings, but that seems to
have been due to his promises of improvement; nowhere does it appear
that she has consented to her husband's immorality or that she has
acquiesced in his relations with his concubine. 20

Fourth. Alfredo next grasps at Liza S. Diambangan's affidavit of recantation to


eliminate his probable culpability for concubinage.
Again, we are not swayed by Alfredo's asseverations.
We have generally looked with disfavor upon retraction of testimonies previously
given in court. Affidavits of recantation are unreliable and deserve scant
consideration. The asserted motives for the repudiation are commonly held
suspect, and the veracity of the statements made in the affidavit of repudiation
are frequently and deservedly subject to serious doubt. 21
EcDSTI

In Firaza v. People, we intoned:


Merely because a witness says that what he had declared is false and
that what he now says is true, is not sufficient ground for concluding that
the previous testimony is false. No such reasoning has ever crystallized
into a rule of credibility. The rule is that a witness may be impeached by
a previous contradictory statement . . . not that a previous statement is
presumed to be false merely because a witness now says that the same
is not true. The jurisprudence of this Court has always been
otherwise,i.e., that contradictory testimony given subsequently does not
necessarily discredit the previous testimony if the contradictions are
satisfactorily explained. [Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has been


solemnly taken before a court of justice in an open and free trial and
under conditions precisely sought to discourage and forestall falsehood
simply because one of the witnesses who had given the testimony later
on changed his mind. Such a rule will make solemn trials a mockery and
place the investigation of the truth at the mercy of unscrupulous
witnesses. Unless there be special circumstances which, coupled with
the retraction of the witness, really raise doubt as to the truth of the
testimony given by him at the trial and accepted by the trial judge, and
only if such testimony is essential to the judgment of conviction, or its
elimination would lead the trial judge to a different conclusion, an
acquittal of the accused based on such a retraction would not be
justified. 22

In this case, Liza S. Diambangan's testimony merely corroborates the still


standing story of Robert and Melissa Diambangan, the other helper in the
Busuego household. Clearly, the two's consistent story may still be the basis of
the Ombudsman's finding of a prima facie case of concubinage against Alfredo
and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no
basis for indicting him and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage
by a husband: (1) keeping a mistress in the conjugal dwelling; (2) sexual
intercourse, under scandalous circumstances, with a woman who is not his wife;
and (3) cohabiting with [a woman who is not his wife] in any other place.
The Ombudsman found a prima facie case against Alfredo and Sia based on the
testimony of Robert, Melissa S. Diambangan and Liza S. Diambangan that
Alfredo had kept Sia in the conjugal dwelling where Sia even stayed at the
conjugal room. We completely agree with the Ombudsman's disquisition:
. . . . It is ingrained in human behavior that a child has love, respect and
loyalty to his family and [would] strive to keep the family harmonious and
united. This is the very reason why [Robert] did not inform his mother
about his father's infidelities during the time when his father was keeping
his mistress at the conjugal dwelling. A son would never turn against his

father by fabricating such a serious story which will cause his home to
crumble, if such is not true. His natural instinct is to protect his home,
which he did when he kept silent for a long time. What broke the camel's
back was the abusive treatment he allegedly suffered and the thought
that things would change for the better if his mom would intervene.
The story of [Robert] in his Affidavit was reinforced by the two house
helpers Melissa S. Diambangan and Liza S. Diambangan, who were
employed by the family. Melissa was with the Busuego family in their
conjugal home in 1997. She left the family in 2005 but returned in 2006.
Liza started working with the family in 2002. Melissa revealed that it was
Emy Sia who recruited her to work with the Busuego family. They both
attested to the fact that [Alfredo] and Emy Sia slept together in the
bedroom of [Alfredo] but Emy Sia would sleep in the maid's quarter when
[Rosa and Alfred] came home for a visit in 1997. They recalled that Emy
Sia calls [Alfredo] "papa". They narrated that Emy Sia would even
confide to them some private matters relating to [her] sexual [proclivities
with Alfredo]. 23
TEcADS

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

(Busuego v. Office of the Ombudsman, G.R. No. 196842, [October 9, 2013])

6.

[G.R. No. 199082. September 18, 2012.]


JOSE MIGUEL T. ARROYO, petitioner, vs. DEPARTMENT OF
JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE
LIMA, in her capacity as Secretary of the Department of
Justice; HON. SIXTO BRILLANTES, JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT
DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE
and FACT-FINDING TEAM, respondents.
[G.R. No. 199085. September 18, 2012.]
BENJAMIN S. ABALOS, SR., petitioner, vs. HON. LEILA DE
LIMA, in her capacity as Secretary of Justice; HON. SIXTO S.
BRILLANTES, JR., in his capacity as COMELEC Chairperson;
RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM
AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE,
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
VILLARET, in their capacity as CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004
AND 2007 ELECTION FRAUD, respondents.
[G.R. No. 199118. September 18, 2012.]
GLORIA MACAPAGAL-ARROYO, petitioner, vs. COMMISSION
ON ELECTIONS, represented by Chairperson Sixto S.
Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
Secretary Leila M. De Lima, JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE, SENATOR
AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT
FINDING TEAM, respondents.

DECISION
PERALTA, J :
p

The Court is vested with the constitutional mandate to resolve justiciable


controversies by applying the rule of law with due deference to the right to due
process, irrespective of the standing in society of the parties involved. It is an
assurance that in this jurisdiction, the wheels of justice turn unimpeded by public
opinion or clamor, but only for the ultimate end of giving each and every member
of society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions
for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose
Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr.
(Abalos) in G.R. No. 199085 and Gloria Macapagal-Arroyo (GMA) in G.R. No.
199118 assailing the following: (1) Commission on Elections (Comelec)
Resolution No. 9266 "In the Matter of the Commission on Elections and
Department of Justice Joint Investigation on the Alleged Election Offenses
Committed during the 2004 and 2007 Elections Pursuant to Law" 1 dated August
2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and Constituting a
Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and
Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases" 2 dated August 15, 2011; (3) Rules of Procedure on the
Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004
and 2007 National Elections (Joint Committee Rules of Procedure) 3 dated
August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October
20, 2011. 4The consolidated petitions and supplemental petitions likewise assail
the validity of the proceedings undertaken pursuant to the aforesaid
issuances.
EaISDC

The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new
witnesses indicating the occurrence of massive electoral fraud and manipulation
of election results in the 2004 and 2007 National Elections, on August 2, 2011,
the Comelec issued Resolution No. 9266 approving the creation of a committee

jointly with the Department of Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and anomalies committed during
the 2004 and 2007 elections. 5
On August 4, 2011, the Secretary of Justice issued Department Order No.
640 6 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011
creating and constituting a Joint Committee and Fact-Finding Team on the 2004
and 2007 National Elections electoral fraud and manipulation cases. The Joint
Committee and the Fact-Finding Team are composed of officials from the DOJ
and the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint
Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team created and referred to
in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and
other election laws shall be approved by the Comelec in accordance with
the Comelec Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the
appropriate courts. 7

The Fact-Finding Team, 8 on the other hand, was created for the purpose of
gathering real, documentary, and testimonial evidence which can be utilized in
the preliminary investigation to be conducted by the Joint Committee. Its specific
duties and functions as enumerated in Section 4 of the Joint Order are as
follows:
cSEDTC

a) Gather and document reports, intelligence information, and


investigative leads from official as well as unofficial sources and
informants;
b) Conduct interviews, record testimonies, take affidavits of witnesses,
and collate material and relevant documentary evidence, such as,
but not limited to, election documents used in the 2004 and 2007
national elections. For security reasons, or to protect the identities

of informants, the Fact-Finding Team may conduct interviews or


document testimonies discreetly;
c) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the
Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of their
commission, individually or in conspiracy, and the provisions of
election and general criminal laws violated, establish evidence for
individual criminal and administrative liability and prosecution, and
prepare the necessary documentation, such as complaints and
charge sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted by the
Committee;
e) Regularly submit to the Committee, the Secretary of Justice and the
Chairman of the Comelec periodic reports and recommendations,
supported by real, testimonial and documentary evidence, which
may then serve as the Committee's basis for immediately
commencing appropriate preliminary investigation proceedings,
as provided under Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and final report to
the Committee, the Secretary of Justice, and the Chairman of the
Comelec. 9

Pursuant to Section 7 10 of the Joint Order, on August 23, 2011, the Joint
Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of
the Initial Report would be the electoral fraud and manipulation of election results
allegedly committed during the May 14, 2007 elections. Thus, in its Initial
Report 11 dated October 20, 2011, the Fact-Finding Team concluded that
manipulation of the results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato and Maguindanao were indeed
perpetrated. 12 The Fact-Finding Team recommended that petitioner Abalos and
ten (10) others 13 be subjected to preliminary investigation for electoral sabotage
for conspiring to manipulate the election results in North and South Cotabato.

Twenty-six (26) 14 persons, including petitioners GMA and Abalos, were likewise
recommended for preliminary investigation for electoral sabotage for
manipulating the election results in Maguindanao. 15 Several persons were also
recommended to be charged administratively, while others, 16including petitioner
Mike Arroyo, were recommended to be subjected to further investigation. 17 The
case resulting from the investigation of the Fact-Finding Team was docketed as
DOJ-Comelec Case No. 001-2011.
TCDHaE

Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator


Pimentel) filed a Complaint-Affidavit 18 for Electoral Sabotage against petitioners
and twelve others 19 and several John Does and Jane Does. The case was
docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011. 20 On November
3, 2011, petitioners, through counsel, appeared before the Joint
Committee. 21 On that preliminary hearing, the Joint Committee consolidated the
two DOJ-Comelec cases. Respondents therein were likewise ordered to submit
their Counter-Affidavits by November 14, 2011. 22
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel. 23 The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer
Proceedings 24 before the Joint Committee, in view of the pendency of his
petition before the Court. On the same day, petitioner GMA filed before the Joint
Committee an Omnibus Motion Ad Cautelam 25 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of electoral sabotage.
GMA contended that for the crime of electoral sabotage to be established, there
is a need to present election documents allegedly tampered which resulted in the
increase or decrease in the number of votes of local and national
candidates. 26 GMA prayed that she be allowed to file her counter-affidavit within
ten (10) days from receipt of the requested documents. 27Petitioner Abalos, for

his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad


Cautelam), 28 in view of the pendency of his petition brought before the Court.
SECAHa

In an Order 29 dated November 15, 2011, the Joint Committee denied the
aforesaid motions of petitioners. GMA subsequently filed a motion for
reconsideration. 30
On November 16, 2011, the Joint Committee promulgated a Joint Resolution
which was later indorsed to the Comelec. 31 On November 18, 2011, after
conducting
a
special
session,
the
Comelec en
banc issued
a
Resolution 32 approving and adopting the Joint Resolution subject to
modifications. The dispositive portion of the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJCOMELEC Preliminary Investigation Committee in DOJ-COMELEC
Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon the
recommendation of the COMELEC's own representatives in the
Committee, is hereby APPROVED and ADOPTED, subject to the
following MODIFICATIONS:
1. That
information/s
for
the
crime
of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369,
amending Section 27 (b) of R.A. 6646, be filed
againstGLORIA MACAPAGAL-ARROYO, BENJAMIN
ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL
AMPATUAN, SR. and PETER REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO
FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K.
UNAS be subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG
SERRANO, ALBERTO AGRA, ANDREI BON TAGUM,
GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER,
JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency
of evidence to establish probable cause;
ITSCED

4. That the recommendation that ESTELITA B. ORBASE, ELIZA


A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA,
MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA,

RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM


H. MABANG, ASUNCION CORAZON P. RENIEDO,
NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T.
KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A.
LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M.
DALOPE, and MACEDA L. ABO be administratively
charged be subjected to further review by this Commission
to determine the appropriate charge/s that may be filed
against them;
5. That the findings of lack of probable cause against LILIAN S.
SUAN-RADAM and YOGIE
G.
MARTIRIZAR be REJECTED by reason of the pendency
of their respective cases before the Regional Trial Court of
Pasay (Branch 114) and this Commission for the same
offense under consideration.
In the higher interest of justice and by reason of manifest attempts to
frustrate the government's right to prosecute and to obtain speedy
disposition of the present case pending before the Commission, the Law
Department and/or any COMELEC legal officers as may be authorized
by
this
Commission
is
hereby ORDERED toIMMEDIATELY
PREPARE and FILE the necessary Information/s before the appropriate
court/s.
SO ORDERED. 33 (Emphasis supplied.)

On even date, pursuant to the above Resolution, the Comelec's Law Department
filed with the Regional Trial Court (RTC), Pasay City, an Information against
petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42 (b) (3) of Republic Act (R.A.) No. 9369, amending Section
27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432CR. 34 The case was raffled to Branch 112 and the corresponding Warrant of
Arrest was issued which was served on GMA on the same day. 35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus
Motion Ad Cautelam 36 with leave to allow the Joint Committee to resolve the
motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest
and a Hold Departure Order, and to proceed to judicial determination of probable

cause. She, likewise, filed with the Comelec a Motion to Vacate Ad


Cautelam 37 praying that its Resolution be vacated for being null and void. The
RTC nonetheless issued a warrant for her arrest which was duly served. GMA
thereafter filed a Motion for Bail which was granted.
HDTISa

Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING
BEEN CREATED WITH THE SOLE END IN VIEW OF
INVESTIGATING AND PROSECUTING CERTAIN PERSONS
AND INCIDENTS ONLY, SPECIFICALLY THOSE INVOLVING
THE 2004 AND 2007 ELECTIONS TO THE EXCLUSION OF
OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V.
TRUTH COMMISSION AND COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO
CONDUCT PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE
COMMISSION ON ELECTIONS A CONSTITUTIONALLY
INDEPENDENT BODY WITH THE DEPARTMENT OF
JUSTICE A POLITICAL AGENT OF THE EXECUTIVE
DEMOLISHES THE INDEPENDENCE OF THE COMMISSION
ON ELECTIONS AS PROVIDED IN ARTICLE IX (A), SECTIONS
1 AND 2 AND IX (C) OF THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC
PRONOUNCEMENTS
OF
THE
PRESIDENT,
HIS
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT
CASES SHOULD BE FILED AGAINST PETITIONER AND HIS
FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011,
THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR
BEING
PERSECUTORY,
PURSUANT
TO ALLADO
V.
DIOKNO AND RELATED CASES.
AICEDc

E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE


TRAMPLES UPON PETITIONER'S RIGHT TO A FAIR
PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY,
HAVE ASSUMED JURISDICTION OVER THE SUBJECT
MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT
COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING
THE JOINT COMMITTEE. 38

In G.R. No. 199085, petitioner Abalos raises the following issues:


I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJCOMELEC
FACT-FINDING
TEAM
AND
PRELIMINARY
INVESTIGATION
COMMITTEE
VIOLATE
PETITIONER'S
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJCOMELEC
FACT-FINDING
TEAM
AND
PRELIMINARY
INVESTIGATION
COMMITTEE
VIOLATE
PETITIONER'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF
SEPARATION OF POWERS BY CREATING THE JOINT DOJCOMELEC
FACT-FINDING
TEAM
AND
PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE
POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL
COURT?
DACTSH

IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER
AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY

INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES


WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF? 39

In G.R. No. 199118, petitioner GMA anchors her petition on the following
grounds:
I. THE

EXECUTIVE DEPARTMENT, THROUGH


THE DOJ,
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS
ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN
THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.

II. THE
COMELEC
HAS
EFFECTIVELY
ABDICATED
ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF
ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND
MALPRACTICES" (ARTICLE IX-C, SECTION 2[6], 1987
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN
FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING
THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT
COMMITTEE RULES HAVE NOT BEEN PUBLISHED
PURSUANT TO TAADA V. TUVERA, G.R. No. L-63915 (29
DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL
PETROLEUM CORPORATION, G.R. No. 173918(08 APRIL
2008), (SIC) 40

We deferred the resolution of petitioners' Motion for the Issuance of a TRO and,
instead, required the respondents to comment on the petitions. 41 We likewise
scheduled the consolidated cases for oral argument for which the parties were
directed to limit their respective discussions to the following issues:
DCaEAS

I. Whether or not Joint Order No. 001-2011 "Creating and Constituting


a Joint DOJ-COMELEC Preliminary Investigation Committee and FactFinding Team on the 2004 and 2007 National Elections Electoral Fraud
and Manipulation Cases" is constitutional in light of the following:

A. The due process clause of the 1987 Constitution


B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to
conduct preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJCOMELEC
Fact-Finding
Team
and
Preliminary
Investigation Committee, and the COMELEC in the
conduct of the preliminary investigation and approval of the
Joint Panel's Resolution. 42

The Court, thereafter, required the parties to submit their respective


Memoranda. 43
The Court's Ruling
Procedural Issues
Respondents claim that Mike Arroyo's petition is moot and that of GMA is moot
and academic. They explain that the Mike Arroyo petition presents no actual
controversy that necessitates the exercise by the Court of its power of judicial
review, considering that he was not among those indicted for electoral sabotage
in the 2007 national elections as the Comelec dismissed the case against him for
insufficiency of evidence. 44 Anent the 2004 national elections, the Fact-Finding
Team is yet to complete its investigation so Mike Arroyo's apprehensions are
merely speculative and anticipatory. 45 As to the GMA petition, respondents aver
that any judgment of the Court will have no practical legal effect because an
Information has already been filed against her in Branch 112, RTC of Pasay
City. 46 With the filing of the Information, the RTC has already acquired
jurisdiction over the case, including all issues relating to the constitutionality or
legality of her preliminary investigation. 47 Respondents also claim that the issues
relating to the constitutionality and validity of the conduct of the preliminary
investigation of GMA are best left to the trial court, considering that it involves
questions of fact. 48 Respondents add that considering that the RTC has

concurrent jurisdiction to determine a constitutional issue, it will be practical for


the Court to allow the RTC to determine the constitutional issues in this case. 49
We do not agree.

aACHDS

Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there
must be an actual case or controversy, that is, one which involves a conflict of
legal rights, an assertion of opposite legal claims susceptible of judicial
resolution. 50 The case must not be moot or academic or based on extra-legal or
other similar considerations not cognizable by a court of justice. 51
A case becomes moot and academic when it ceases to present a justiciable
controversy so that a declaration on the issue would be of no practical use or
value. 52However, a case should not be dismissed simply because one of the
issues raised therein had become moot and academic by the onset of a
supervening event, whether intended or incidental, if there are other causes
which need to be resolved after trial. 53
Here, the consolidated cases are not rendered moot and academic by the
promulgation of the Joint Resolution by the Joint Committee and the approval
thereof by the Comelec. It must be recalled that the main issues in the three
petitions before us are the constitutionality and legality of the creation of the Joint
Committee and the Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically provides that the Joint
Committee was created for purposes of investigating the alleged massive
electoral fraud during the 2004 and 2007 national elections. However, in the FactFinding Team's Initial Report, the team specifically agreed that the report would
focus on the irregularities during the 2007 elections. Also, in its November 18,
2011 Resolution, the Comelec, while directing the filing of information against
petitioners Abalos and GMA, ordered that further investigations be conducted
against the other respondents therein. Apparently, the Fact-Finding Team's and
Joint Committee's respective mandates have not been fulfilled and they are,
therefore, bound to continue discharging their duties set forth in the assailed Joint
Order. Moreover, petitioners question the validity of the proceedings undertaken
by the Fact-Finding Team and the Joint Committee leading to the filing of

information, on constitutional grounds. We are not, therefore, barred from


deciding on the petitions simply by the occurrence of the supervening events of
filing an information and dismissal of the charges.
Jurisdiction
over
the
conduct of the preliminary investigation

validity

of

the

This is not the first time that the Court is confronted with the issue of jurisdiction
to conduct preliminary investigation and at the same time with the propriety of the
conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission
on Good Government [PCGG], 54 the Court resolved two issues, namely: (1)
whether or not the PCGG has the power to conduct a preliminary investigation of
the anti-graft and corruption cases filed by the Solicitor General against Eduardo
Cojuangco, Jr. and other respondents for the alleged misuse of coconut levy
funds; and (2) on the assumption that it has jurisdiction to conduct such a
preliminary investigation, whether or not its conduct constitutes a violation of
petitioner's right to due process and equal protection of the law. 55 The Court
decided these issues notwithstanding the fact that Informations had already been
filed with the trial court.
aEcDTC

In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the


issuance of a warrant of arrest, the Court could not ignore the undue haste in the
filing of the information and the inordinate interest of the government in filing the
same. Thus, this Court took time to determine whether or not there was, indeed,
probable cause to warrant the filing of information. This, notwithstanding the fact
that information had been filed and a warrant of arrest had been issued.
Petitioners therein came directly to this Court and sought relief to rectify the
injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle
of hierarchy of courts. This principle requires that recourse must first be made to
the lower-ranked court exercising concurrent jurisdiction with a higher
court. 57 The Supreme Court has original jurisdiction over petitions
for certiorari, prohibition,mandamus, quo warranto, and habeas corpus. While this
jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation

of this Court's jurisdiction is allowed when there are special and important
reasons therefor, clearly and especially set out in the petition, as in the present
case. 58 In the consolidated petitions, petitioners invoke exemption from the
observance of the rule on hierarchy of courts in keeping with the Court's duty to
determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws, and that they have
not abused the discretion given to them. 59
It is noteworthy that the consolidated petitions assail the constitutionality of
issuances and resolutions of the DOJ and the Comelec. The general rule is that
this Court shall exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation. However, such rule is subject to
exception, that is, in circumstances where the Court believes that resolving the
issue of constitutionality of a law or regulation at the first instance is of paramount
importance and immediately affects the social, economic, and moral well-being of
the people. 60 This case falls within the exception. An expeditious resolution of
the issues raised in the petitions is necessary. Besides, the Court has entertained
a direct resort to the Court without the requisite motion for reconsideration filed
below or without exhaustion of administrative remedies where there is an urgent
necessity for the resolution of the question and any further delay would prejudice
the interests of the government or of the petitioners and when there is an alleged
violation of due process, as in the present case. 61 We apply the same relaxation
of the Rules in the present case and, thus, entertain direct resort to this Court.
Substantive Issues
Bases
for
the
Fact-Finding Team and Joint Committee

Creation

of

the

Section 2, Article IX-C of the 1987 Constitution enumerates the powers and
functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power
to:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and
malpractices.
IHCSET

This was an important innovation introduced by the 1987 Constitution,


because the above-quoted provision was not in the 1935 and
1973 Constitutions. 62
The grant to the Comelec of the power to investigate and prosecute election
offenses as an adjunct to the enforcement and administration of all election laws
is intended to enable the Comelec to effectively insure to the people the free,
orderly, and honest conduct of elections. The failure of the Comelec to exercise
this power could result in the frustration of the true will of the people and make a
mere idle ceremony of the sacred right and duty of every qualified citizen to
vote. 63
The constitutional grant of prosecutorial power in the Comelec was reflected in
Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government:Provided,
however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal [public prosecutor], or with the
Ministry [Department] of Justice for proper investigation and prosecution,
if warranted.

Under the above provision of law, the power to conduct preliminary investigation
is vested exclusively with the Comelec. The latter, however, was given by the
same provision of law the authority to avail itself of the assistance of other
prosecuting arms of the government. 64 Thus, under Section 2, 65 Rule 34 of the
Comelec Rules of Procedure, provincial and city prosecutors and their assistants
are given continuing authority as deputies to conduct preliminary investigation of
complaints involving election offenses under election laws and to prosecute the
same. The complaints may be filed directly with them or may be indorsed to them
by the petitioner or its duly authorized representatives. 66

Thus, under the Omnibus Election Code, while the exclusive jurisdiction to
conduct preliminary investigation had been lodged with the Comelec, the
prosecutors had been conducting preliminary investigations pursuant to the
continuing delegated authority given by the Comelec. The reason for this
delegation of authority has been explained in Commission on Elections v.
Espaol: 67
The deputation of the Provincial and City Prosecutors is necessitated by
the need for prompt investigation and dispensation of election cases as
an indispensable part of the task of securing fine, orderly, honest,
peaceful and credible elections. Enfeebled by lack of funds and the
magnitude of its workload, the petitioner does not have a sufficient
number of legal officers to conduct such investigation and to prosecute
such cases. 68

Moreover, as we acknowledged in People v. Basilla, 69 the prompt and fair


investigation and prosecution of election offenses committed before or in the
course of nationwide elections would simply not be possible without the
assistance of provincial and city fiscals [prosecutors] and their assistants and
staff members, and of the state prosecutors of the DOJ. 70
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A.
No. 9369, 71 which reads:
aScIAC

Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby


amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the power, concurrent with the
other prosecuting arms of the government, to conduct
preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. 72

As clearly set forth above, instead of a mere delegated authority, the other
prosecuting arms of the government, such as the DOJ, now exercise concurrent
jurisdiction with the Comelec to conduct preliminary investigation of all election
offenses and to prosecute the same.

It is, therefore, not only the power but the duty of both the Comelec and the DOJ
to perform any act necessary to ensure the prompt and fair investigation and
prosecution of election offenses. Pursuant to the above constitutional and
statutory provisions, and as will be explained further below, we find no
impediment for the Comelec and the DOJ to create the Joint Committee and
Fact-Finding Team for the purpose of conducting a thorough investigation of the
alleged massive electoral fraud and the manipulation of election results in the
2004 and 2007 national elections relating in particular to the presidential and
senatorial elections. 73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-Finding Team
is in violation of the equal protection clause of the Constitution because its sole
purpose is the investigation and prosecution of certain persons and incidents.
They argue that there is no substantial distinction between the allegations of
massive electoral fraud in 2004 and 2007, on the one hand, and previous and
subsequent national elections, on the other hand; and no substantial distinction
between petitioners and the other persons or public officials who might have
been involved in previous election offenses. They insist that the Joint Panel was
created to target only the Arroyo Administration as well as public officials linked to
the Arroyo Administration. To bolster their claim, petitioners explain that Joint
Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine
Truth Commission) which this Court had already nullified for being violative of the
equal protection clause.
Respondents, however, refute the above contentions and argue that the wide
array of the possible election offenses and broad spectrum of individuals who
may have committed them, if any, immediately negate the assertion that the
assailed orders are aimed only at the officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the
Constitution which reads:

Section 1. No person shall be deprived of life, liberty, or property without


due process of law, nor shall any person be denied the equal
protection of the laws.74

The concept of equal protection has been laid down in Biraogo v. Philippine Truth
Commission of 2010: 75
One of the basic principles on which this government was founded is that
of the equality of right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the laws is embraced in
the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate
clause, however, to provide for a more specific guaranty against any form
of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if
the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
cEaTHD

According to a long line of decisions, equal protection simply requires


that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. It requires public
bodies and institutions to treat similarly-situated individuals in a similar
manner. The purpose of the equal protection clause is to secure every
person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statute or
by its improper execution through the state's duly-constituted authorities.
In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective. 76

Unlike the matter addressed by the Court's ruling in Biraogo v. Philippine Truth
Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground
that it singles out the officials of the Arroyo Administration and, therefore, it
infringes the equal protection clause. The Philippine Truth Commission of 2010
was expressly created for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since Executive Order No.

1 77 specifically referred to the "previous administration"; while the Joint


Committee was created for the purpose of conducting preliminary investigation of
election offenses during the 2004 and 2007 elections. While GMA and Mike
Arroyo were among those subjected to preliminary investigation, not all
respondents therein were linked to GMA as there were public officers who were
investigated upon in connection with their acts in the performance of their official
duties. Private individuals were also subjected to the investigation by the Joint
Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is
intended to eliminate discrimination and oppression based on inequality.
Recognizing the existence of real differences among men, it does not demand
absolute equality. It merely requires that all persons under like circumstances and
conditions shall be treated alike both as to privileges conferred and liabilities
enforced. 78
We once held that the Office of the Ombudsman is granted virtually plenary
investigatory powers by the Constitution and by law and thus may, for every
particular investigation, whether commenced by complaint or on its own initiative,
decide how best to pursue each investigation. Since the Office of the
Ombudsman is granted such latitude, its varying treatment of similarly situated
investigations cannot by itself be considered a violation of any of the parties'
rights to the equal protection of the laws. 79 This same doctrine should likewise
apply in the present case.
acITSD

Thus, as the constitutional body granted with the broad power of enforcing and
administering all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall, 80 and tasked to ensure free, orderly,
honest, peaceful, and credible elections, 81 the Comelec has the authority to
determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national
elections setting forth the guidelines to be observed in the conduct of the
elections. This shows that every election is distinct and requires different
guidelines in order to ensure that the rules are updated to respond to existing
circumstances.

Moreover, as has been practiced in the past, complaints for violations of election
laws may be filed either with the Comelec or with the DOJ. The Comelec may
even initiate, motu proprio, complaints for election offenses. 82 Pursuant to law
and the Comelec's own Rules, investigations may be conducted either by the
Comelec itself through its law department or through the prosecutors of the DOJ.
These varying procedures and treatment do not, however, mean that
respondents are not treated alike. Thus, petitioners' insistence of infringement of
their constitutional right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold
neutrality of an impartial judge because it is all at once the evidence-gatherer,
prosecutor and judge. They explain that since the Fact-Finding Team has found
probable cause to subject them to preliminary investigation, it is impossible for
the Joint Committee to arrive at an opposite conclusion. Petitioners likewise
express doubts of any possibility that the Joint Committee will be fair and
impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly
expressed prejudgment against petitioners through their statements captured by
the media.
For their part, respondents contend that petitioners failed to present proof that the
President of the Philippines, Secretary of Justice, and Chairman of the Comelec
actually made the statements allegedly prejudging their case and in the context in
which they interpreted them. They likewise contend that assuming that said
statements were made, there was no showing that Secretary De Lima had tried
to intervene in the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out that Joint
Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint
Committee, with their respective mandates. Hence, they cannot be considered as
one.
DaAISH

We find for respondents.


It is settled that the conduct of preliminary investigation is, like court proceedings,
subject to the requirements of both substantive and procedural due
process. 83Preliminary investigation is considered as a judicial proceeding

wherein the prosecutor or investigating officer, by the nature of his functions, acts
as a quasi-judicial officer. 84 The authority of a prosecutor or investigating officer
duly empowered to preside over or to conduct a preliminary investigation is no
less than that of a municipal judge or even an RTC Judge. 85 Thus, as
emphasized by the Court in Ladlad v. Velasco: 86
. . . We cannot emphasize too strongly that prosecutors should not
allow, and should avoid, giving the impression that their noble office is
being used or prostituted, wittingly or unwittingly, for political ends, or
other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the established
procedure may public's perception of the impartiality of the prosecutor
be enhanced. 87

In this case, as correctly pointed out by respondents, there was no showing that
the statements claimed to have prejudged the case against petitioners were
made by Secretary De Lima and Chairman Brillantes or were in the prejudicial
context in which petitioners claimed the statements were made. A reading of the
statements allegedly made by them reveals that they were just responding to
hypothetical questions in the event that probable cause would eventually be
found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint
Committee itself, tasked to conduct the requisite preliminary investigation against
petitioners, made biased statements that would convey to the public that the
members were favoring a particular party. Neither did the petitioners show that
the President of the Philippines, the Secretary of Justice or the Chairman of the
Comelec intervened in the conduct of the preliminary investigation or exerted
undue pressure on their subordinates to tailor their decision with their public
declarations and adhere to a pre-determined result. 88 Moreover, insofar as the
Comelec is concerned, it must be emphasized that the constitutional body is
collegial. The act of the head of a collegial body cannot be considered as that of
the entire body itself. 89 In equating the alleged bias of the above-named officials
with that of the Joint Committee, there would be no arm of the government
credible enough to conduct a preliminary investigation. 90

It must also be emphasized that Joint Order No. 001-2011 created two bodies,
namely: (1) the Fact-Finding Team tasked to gather real, documentary and
testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee; and (2) the Joint Committee mandated to
conduct preliminary investigation. It is, therefore, inaccurate to say that there is
only one body which acted as evidence-gatherer, prosecutor and judge.
cITAaD

C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its
composition, the creation of its own Rules of Procedure, and the source of
funding for its operation. It is their position that the power of the DOJ to
investigate the commission of crimes and the Comelec's constitutional mandate
to investigate and prosecute violations of election laws do not include the power
to create a new public office in the guise of a joint committee. Thus, in creating
the Joint Panel, the DOJ and the Comelec encroached upon the power of the
Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding
Team are not new public offices, but merely collaborations between two existing
government agencies sharing concurrent jurisdiction. This is shown by the fact
that the members of the Joint Panel are existing officers of the DOJ and the
Comelec who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and
where appropriate, prosecute cases of election offenses. This is necessary in
ensuring free, orderly, honest, peaceful and credible elections. On the other
hand, the DOJ is mandated to administer the criminal justice system in
accordance with the accepted processes thereof consisting in the investigation of
the crimes, prosecution of offenders and administration of the correctional
system. 91 It is specifically empowered to "investigate the commission of crimes,
prosecute offenders and administer the probation and correction system." 92 Also,
the provincial or city prosecutors and their assistants, as well as the national and
regional state prosecutors, are specifically named as the officers authorized to
conduct preliminary investigation. 93 Recently, the Comelec, through its duly

authorized legal offices, is given the power, concurrent with the other prosecuting
arms of the government such as the DOJ, to conduct preliminary investigation of
all election offenses. 94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the
assailed Joint Order which give the DOJ and the Comelec the power to conduct
preliminary investigation. No new power is given to them by virtue of the assailed
order. As to the members of the Joint Committee and Fact-Finding Team, they
perform such functions that they already perform by virtue of their current
positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in
no way can we consider the Joint Committee as a new public office.
caADSE

D. Independence of the Comelec


Petitioners claim that in creating the Joint Panel, the Comelec has effectively
abdicated its constitutional mandate to investigate and, where appropriate, to
prosecute cases of violation of election laws including acts or omissions
constituting election frauds, offenses, and malpractices in favor of the Executive
Department acting through the DOJ Secretary. Under the set-up, the Comelec
personnel is placed under the supervision and control of the DOJ. The
chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its
independence to the DOJ and has acceded to share its exercise of judgment and
discretion with the Executive Branch.
We do not agree.
Section 1, 95 Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as independent. Although essentially executive in
nature, they are not under the control of the President of the Philippines in the
discharge of their respective functions. 96 The Constitution envisions a truly
independent Comelec committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the people's sacred right of
suffrage the citizenry's vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability. 97
Prior to the amendment of Section 265 of the Omnibus Election Code, the
Comelec had the exclusive authority to investigate and prosecute election
offenses. In the discharge of this exclusive power, the Comelec was given the

right to avail and, in fact, availed of the assistance of other prosecuting arms of
the government such as the prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city prosecutors were
authorized to receive the complaint for election offense and delegate the conduct
of investigation to any of their assistants. The investigating prosecutor, in turn,
would make a recommendation either to dismiss the complaint or to file the
information. This recommendation is subject to the approval of the state,
provincial or city prosecutor, who himself may file the information with the proper
court if he finds sufficient cause to do so, subject, however, to the accused's right
to appeal to the Comelec. 98
Moreover, during the past national and local elections, the Comelec issued
Resolutions 99 requesting the Secretary of Justice to assign prosecutors as
members of Special Task Forces to assist the Comelec in the investigation and
prosecution of election offenses. These Special Task Forces were created
because of the need for additional lawyers to handle the investigation and
prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the
power to conduct preliminary investigation. Otherwise, the prompt resolution of
alleged election offenses will not be attained. This delegation of power, otherwise
known as deputation, has long been recognized and, in fact, been utilized as an
effective means of disposing of various election offense cases. Apparently, as
mere deputies, the prosecutors played a vital role in the conduct of preliminary
investigation, in the resolution of complaints filed before them, and in the filing of
the informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on Elections, 100 the grant
of exclusive power to investigate and prosecute cases of election offenses to the
Comelec was not by virtue of the Constitution but by the Omnibus Election
Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ
now conducts preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary information by virtue only
of a delegated authority, they now have better grounds to perform such function

by virtue of the statutory grant of authority. If deputation was justified because of


lack of funds and legal officers to ensure prompt and fair investigation and
prosecution of election offenses, the same justification should be cited to justify
the grant to the other prosecuting arms of the government of such concurrent
jurisdiction.
CITDES

In view of the foregoing disquisition, we find no impediment for the creation of a


Joint Committee. While the composition of the Joint Committee and Fact-Finding
Team is dominated by DOJ officials, it does not necessarily follow that the
Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the
Comelec in accordance with the Comelec Rules of Procedure. This shows that
the Comelec, though it acts jointly with the DOJ, remains in control of the
proceedings. In no way can we say that the Comelec has thereby abdicated its
independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the
authority to investigate and prosecute election offenses is to give the Comelec all
the necessary and incidental powers for it to achieve the objective of holding free,
orderly, honest, peaceful, and credible elections. 101 The Comelec should be
allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created. 102 We may not
agree fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this Court should not interfere. 103 Thus,
Comelec Resolution No. 9266, approving the creation of the Joint Committee and
Fact-Finding Team, should be viewed not as an abdication of the constitutional
body's independence but as a means to fulfill its duty of ensuring the prompt
investigation and prosecution of election offenses as an adjunct of its mandate of
ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to
investigate crimes, prosecute offenders, and administer the correctional system,
the DOJ is likewise not barred from acting jointly with the Comelec. It must be
emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in
conducting preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the same subject

matter. 104 Contrary to the contention of the petitioners, there is no prohibition on


simultaneous exercise of power between two coordinate bodies. What is
prohibited is the situation where one files a complaint against a respondent
initially with one office (such as the Comelec) for preliminary investigation which
was immediately acted upon by said office and the re-filing of substantially the
same complaint with another office (such as the DOJ). The subsequent
assumption of jurisdiction by the second office over the cases filed will not be
allowed. Indeed, it is a settled rule that the body or agency that first takes
cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others. 105As cogently held by the Court in Department of Justice v. Hon.
Liwag: 106
To allow the same complaint to be filed successively before two or more
investigative bodies would promote multiplicity of proceedings. It would
also cause undue difficulties to the respondent who would have to
appear and defend his position before every agency or body where the
same complaint was filed. This would lead hapless litigants at a loss as
to where to appear and plead their cause or defense.
HESIcT

There is yet another undesirable consequence. There is the distinct


possibility that the two bodies exercising jurisdiction at the same time
would come up with conflicting resolutions regarding the guilt of the
respondents.
Finally, the second investigation would entail an unnecessary
expenditure of public funds, and the use of valuable and limited
resources of Government, in a duplication of proceedings already started
with the Ombudsman. 107

None of these problems would likely arise in the present case. The Comelec
and the DOJ themselves agreed that they would exercise their concurrent
jurisdiction jointly. Although the preliminary investigation was conducted on the
basis of two complaints the initial report of the Fact-Finding Team and the
complaint of Senator Pimentel both complaints were filed with the Joint
Committee. Consequently, the complaints were filed with and the preliminary
investigation was conducted by only one investigative body. Thus, we find no
reason to disallow the exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the magnitude of the

crimes allegedly committed by petitioners. The joint preliminary investigation


also serves to maximize the resources and manpower of both the Comelec
and the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the
investigation conducted by the Comelec involving Radam and Martirizar bars the
creation of the Joint Committee for purposes of conducting another preliminary
investigation. In short, they claim that the exercise by the Comelec of its
jurisdiction to investigate excludes other bodies such as the DOJ and the Joint
Committee from taking cognizance of the case. Petitioners add that the
investigation should have been conducted also by the Comelec as the 2007
cases of Radam and Martirizar include several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam,
Martirizar and other unidentified persons, it only pertains to election offenses
allegedly committed in North and South Cotabato. On the other hand, the
preliminary investigation conducted by the Joint Committee (involving GMA)
pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of
fulfilling its duty of ensuring the prompt investigation and prosecution of election
offenses as discussed earlier, there is nothing wrong if the Comelec chooses to
work jointly with the DOJ in the conduct of said investigation. To reiterate, in no
way can we consider this as an act abdicating the independence of the
Comelec.
CAcDTI

Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of
Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure.
There is, therefore, no need to promulgate new Rules as may be complementary
to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the
Comelec and the DOJ to exercise powers which are already vested in them
by the Constitution and other existing laws, it need not be published for it to be
valid and effective. A close examination of the Joint Committee's Rules of

Procedure, however, would show that its provisions affect the public. Specifically,
the following provisions of the Rules either restrict the rights of or provide
remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint
Committee will no longer entertain complaints from the public as soon as the
Fact-Finding Team submits its final report, except for such complaints involving
offenses mentioned in the Fact-Finding Team's Final Report"; (2) Section 2 states
that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3)
Section 5 provides that a Motion for Reconsideration may be availed of by the
aggrieved parties against the Joint Committee's Resolution. Consequently,
publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative
regulations and issuances, as clearly outlined in Taada v. Tuvera: 108
We hold therefore that all statutes, including those of local application
and private laws, shall be published as a condition for their effectivity,
which shall begin fifteen days after publication unless a different
effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. Administrative rules and
regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
cCSHET

Interpretative regulations and those merely internal in nature, that is,


regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so
called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in
the performance of their duties. 109

As opposed to Honasan II v. The Panel of Investigating Prosecutors of the


Department of Justice, 110 where the Court held that OMB-DOJ Joint Circular No.
95-001 is only an internal arrangement between the DOJ and the Office of the
Ombudsman outlining the authority and responsibilities among prosecutors of
both offices in the conduct of preliminary investigation, the assailed Joint

Committee's Rules of Procedure regulate not only the prosecutors of the DOJ
and the Comelec but also the conduct and rights of persons, or the public in
general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give
as wide publicity as possible so that all persons having an interest in the
proceedings may be notified thereof. 111 The requirement of publication is
intended to satisfy the basic requirements of due process. It is imperative for it
will be the height of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice whatsoever. 112
Nevertheless, even if the Joint Committee's Rules of Procedure is ineffective for
lack of publication, the proceedings undertaken by the Joint Committee are not
rendered null and void for that reason, because the preliminary investigation was
conducted by the Joint Committee pursuant to the procedures laid down in Rule
112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of
Procedure.
Validity
of
Preliminary Investigation

the

Conduct

of

In her Supplemental Petition, 113 GMA outlines the incidents that took place after
the filing of the instant petition, specifically the issuance by the Joint Committee
of the Joint Resolution, the approval with modification of such resolution by the
Comelec and the filing of information and the issuance of a warrant of arrest by
the RTC. With these supervening events, GMA further assails the validity of the
proceedings that took place based on the following additional grounds: (1) the
undue and unbelievable haste attending the Joint Committee's conduct of the
preliminary investigation, its resolution of the case, and its referral to and
approval by the Comelec, taken in conjunction with the statements from the
Office of the President, demonstrate a deliberate and reprehensible pattern of
abuse of inalienable rights and a blatant disregard of the envisioned integrity and
independence of the Comelec; (2) as it stands, the creation of the Joint
Committee was for the singular purpose of railroading the proceedings in the
prosecution of the petitioner and in flagrant violation of her right to due process
and equal protection of the laws; (3) the proceedings of the Joint Committee
cannot be considered impartial and fair, considering that respondents have acted

as law enforcers, who conducted the criminal investigation, gathered evidence


and thereafter ordered the filing of complaints, and at the same time authorized
preliminary investigation based on the complaints they caused to be filed; (4) the
Comelec became an instrument of oppression when it hastily approved the
resolution of the Joint Committee even if two of its members were in no position
to cast their votes as they admitted to not having yet read the voluminous records
of the cases; and (5) flagrant and repeated violations of her right to due process
at every stage of the proceedings demonstrate a deliberate attempt to single out
petitioner through the creation of the Joint Committee. 114
In their Supplement to the Consolidated Comment, 115 respondents accuse
petitioners of violating the rule against forum shopping. They contend that in filing
the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad
Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the
Comelec, GMA raises the common issue of whether or not the proceedings
before the Joint Committee and the Comelec are null and void for violating the
Constitution. Respondents likewise claim that the issues raised in the
supplemental petition are factual which is beyond the power of this Court to
decide.
TIDaCE

We cannot dismiss the cases before us on the ground of forum shopping.


Forum shopping is the act of a party against whom an adverse judgment has
been rendered in one forum, of seeking another and possibly favorable opinion in
another forum other than by appeal or the special civil action
of certiorari. 116 There can also be forum shopping when a party institutes two or
more suits in different courts, either simultaneously or successively, in order to
ask the courts to rule on the same and related causes and/or to grant the same
or substantially the same reliefs on the supposition that one or the other court
would make a favorable disposition or increase a party's chances of obtaining a
favorable decision or action. 117
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent
Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad
Cautelambefore the Comelec, emphasizing the unbelievable haste committed by
the Joint Committee and the Comelec in disposing of the cases before them.

However, a plain reading of the allegations in GMA's motion before the RTC
would show that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in abeyance the
issuance of the warrant of arrest, considering that her motion for reconsideration
of the denial of her motion to be furnished copies of documents was not yet acted
upon by the Joint Committee. If at all the constitutional issue of violation of due
process was raised, it was merely incidental. More importantly, GMA raised in her
motion with the RTC the finding of probable cause as she sought the judicial
determination of probable cause which is not an issue in the petitions before us.
GMA's ultimate prayer is actually for the court to defer the issuance of the warrant
of arrest. Clearly, the reliefs sought in the RTC are different from the reliefs
sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while
the issues raised therein are substantially similar to the issues in the
supplemental petition which, therefore, strictly speaking, warrants outright
dismissal on the ground of forum shopping, we cannot do so in this case in light
of the due process issues raised by GMA. 118 It is worthy to note that the main
issues in the present petitions are the constitutionality of the creation of the Joint
Panel and the validity of the proceedings undertaken pursuant thereto for alleged
violation of the constitutional right to due process. In questioning the propriety of
the conduct of the preliminary investigation in her Supplemental Petition, GMA
only raises her continuing objection to the exercise of jurisdiction of the Joint
Committee and the Comelec. There is, therefore, no impediment for the Court to
rule on the validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman, 119 the Court explained the nature of
preliminary investigation, to wit:
TaISEH

A preliminary investigation is held before an accused is placed on trial to


secure the innocent against hasty, malicious, and oppressive
prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public trial.
It is also intended to protect the state from having to conduct useless and
expensive trials. While the right is statutory rather than constitutional, it is
a component of due process in administering criminal justice. The right
to have a preliminary investigation conducted before being bound for trial

and before being exposed to the risk of incarceration and penalty is not a
mere formal or technical right; it is a substantive right. To deny the
accused's claim to a preliminary investigation is to deprive him of the full
measure of his right to due process. 120

A preliminary investigation is the crucial sieve in the criminal justice system which
spells for an individual the difference between months if not years of agonizing
trial and possibly jail term, on the one hand, and peace of mind and liberty, on the
other hand. Thus, we have characterized the right to a preliminary investigation
as not a mere formal or technical right but a substantive one, forming part of due
process in criminal justice. 121
In a preliminary investigation, the Rules of Court guarantee the petitioners basic
due process rights such as the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to submit counteraffidavits, and other supporting documents in her defense. 122 Admittedly, GMA
received the notice requiring her to submit her counter-affidavit. Yet, she did not
comply, allegedly because she could not prepare her counter-affidavit. She
claimed that she was not furnished by Senator Pimentel pertinent documents that
she needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam 123 to require Senator Pimentel to furnish
her with documents referred to in his complaint-affidavit and for production of
election documents as basis for the charge of electoral sabotage, GMA prayed
that the Joint Committee issue an Order directing the Fact-Finding Team and
Senator Pimentel to furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of Senator Aquilino
Pimentel III filed before the Commission on Elections against
Attys. Lilia Suan-Radam and Yogie Martirizar, as well as the
Informations filed in the Regional Trial Court of Pasay City, Branch
114 in Criminal Case Nos. R-PSU-11-03190-CR to R-PSU-1103200-CR.
b. Records in the petitions filed by complainant Pimentel before the
National Board of Canvassers, specifically in NBC Case Nos. 07162, 07-168, 07-157, 07-159, 07-161 and 07-163.
TaEIAS

c. Documents which served as basis in the allegations of "Significant


findings specific to the protested municipalities in the Province of
Maguindanao."
d. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Lanao del Norte."
e. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Shariff Kabunsuan."
f. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Lanao del Sur."
g. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Sulu."
h. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Basilan."
i. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Sultan Kudarat." 124

GMA likewise requested the production of election documents used in the


Provinces of South and North Cotabato and Maguindanao. 125
The Joint Committee, however, denied GMA's motion which carried with it the
denial to extend the filing of her counter-affidavit. Consequently, the cases were
submitted for resolution sans GMA's and the other petitioners' counter-affidavits.
This, according to GMA, violates her right to due process of law.
EHDCAI

We do not agree.
GMA's insistence of her right to be furnished the above-enumerated documents
is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which
reads:

(b) . . .
The respondent shall have the right to examine the evidence submitted
by the complainant which he may not have been furnished and to
copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to
present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made
available for examination, copying or photographing at the expense of
the requesting party. 126

Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the
respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the
complaint, affidavits and other supporting evidence, the investigating
officer finds no ground to continue with the inquiry, he shall recommend
the dismissal of the complaint and shall follow the procedure prescribed
in Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits and
other supporting documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other supporting
documents. The respondent shall have the right to examine all other
evidence submitted by the complainant. 127

Clearly from the above-quoted provisions, the subpoena issued against


respondent [therein] should be accompanied by a copy of the complaint and the
supporting affidavits and documents. GMA also has the right to examine
documents but such right of examination is limited only to the documents or
evidence submitted by the complainants (Senator Pimentel and the Fact-Finding
Team) which she may not have been furnished and to copy them at her
expense.
AEDCHc

While it is true that Senator Pimentel referred to certain election documents


which served as bases in the allegations of significant findings specific to the
protested municipalities involved, there were no annexes or attachments to the
complaint filed. 128 As stated in the Joint Committee's Order dated November 15,

2011 denying GMA's Omnibus Motion Ad Cautelam, Senator Pimentel was


ordered to furnish petitioners with all the supporting evidence. 129 However,
Senator Pimentel manifested that he was adopting all the affidavits attached to
the Fact-Finding Team's Initial Report. 130 Therefore, when GMA was furnished
with the documents attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of Procedure and the
Rules on Criminal Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that were referred
to in Senator Pimentel's complaint but were not submitted to the Joint Committee,
the latter considered those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later be presented during
the trial) 131 as the evidence submitted before it were considered adequate to find
probable cause against her. 132 Anyway, the failure of the complainant to submit
documents supporting his allegations in the complaint may only weaken his
claims and eventually works for the benefit of the respondent as these merely are
allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary
investigation, the complainants are not obliged to prove their cause beyond
reasonable doubt. It would be unfair to expect them to present the entire
evidence needed to secure the conviction of the accused prior to the filing of
information. 133 A preliminary investigation is not the occasion for the full and
exhaustive display of the parties' respective evidence but the presentation only of
such evidence as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof and should be held for
trial. 134 Precisely there is a trial to allow the reception of evidence for the
prosecution in support of the charge. 135
With the denial of GMA's motion to be furnished with and examine the documents
referred to in Senator Pimentel's complaint, GMA's motion to extend the filing of
her counter-affidavit and countervailing evidence was consequently denied.
Indeed, considering the nature of the crime for which GMA was subjected to
preliminary investigation and the documents attached to the complaint, it is
incumbent upon the Joint Committee to afford her ample time to examine the
documents submitted to [the Joint Committee] in order that she would be able to

prepare her counter-affidavit. She cannot, however, insist to examine documents


not in the possession and custody of the Joint Committee nor submitted by the
complainants. Otherwise, it might cause undue and unnecessary delay in the
disposition of the cases. This undue delay might result in the violation of the right
to a speedy disposition of cases as enshrined in Section 16, Article III of the
Constitution which states that "all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative
bodies." The constitutional right to speedy disposition of cases is not limited to
the accused in criminal proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings. 136 Any party to a case has the right to demand on all
officials tasked with the administration of justice to expedite its
disposition. 137Society has a particular interest in bringing swift prosecutions, and
the society's representatives are the ones who should protect that interest. 138
Even assuming for the sake of argument that the denial of GMA's motion to be
furnished with and examine the documents referred to in Senator Pimentel's
complaint carried with it the denial to extend the filing of her counter-affidavit and
other countervailing evidence rendering the preliminary investigation irregular,
such irregularity would not divest the RTC of jurisdiction over the case and would
not nullify the warrant of arrest issued in connection therewith, considering that
Informations had already been filed against petitioners, except Mike Arroyo. This
would only compel us to suspend the proceedings in the RTC and remand the
case to the Joint Committee so that GMA could submit her counter-affidavit and
other countervailing evidence if she still opts to. However, to do so would hold
back the progress of the case which is anathema to the accused's right to speedy
disposition of cases.
DAEaTS

It is well settled that the absence [or irregularity] of preliminary investigation does
not affect the court's jurisdiction over the case. Nor does it impair the validity of
the criminal information or render it defective. Dismissal is not the
remedy. 139 Neither is it a ground to quash the information or nullify the order of
arrest issued against the accused or justify the release of the accused from
detention. 140 The proper course of action that should be taken is to hold in

abeyance the proceedings upon such information and to remand the case for the
conduct of preliminary investigation. 141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good
Government [PCGG] 142 and Allado v. Diokno, 143 we dismissed the criminal
cases and set aside the informations and warrants of arrest. In Cojuangco, we
dismissed the criminal case because the information was filed by the PCGG
which we declared to be unauthorized to conduct the preliminary investigation
and, consequently, file the information as it did not possess the cold neutrality of
an impartial judge. In Allado, we set aside the warrant of arrest issued against
petitioners therein and enjoined the trial court from proceeding further for lack of
probable cause. For one, there was serious doubt on the reported death of the
victim in that case since the corpus delicti had not been established nor had his
remains been recovered; and based on the evidence submitted, there was
nothing to incriminate petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC of Pasay City was filed
by the Comelec en banc which had the authority to file the information for
electoral sabotage and because the presence or absence of probable cause is
not an issue herein. As can be gleaned from their assignment of errors/issues,
petitioners did not question the finding of probable cause in any of their
supplemental petitions. It was only in GMA's memorandum where she belatedly
included a discussion on the "insufficiency" of the evidence supporting the finding
of probable cause for the filing of the Information for electoral sabotage against
her. 144 A closer look at her arguments, however, would show that they were
included only to highlight the necessity of examining the election documents
GMA requested to see before she could file her counter-affidavit. At any rate,
since GMA failed to submit her counter-affidavit and other countervailing
evidence within the period required by the Joint Committee, we cannot excuse
her from non-compliance.
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court. However, speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of functions. 145 The orderly

administration of justice remains the paramount consideration with particular


regard to the peculiar circumstances of each case. 146 To be sure, petitioners
were given the opportunity to present countervailing evidence. Instead of
complying with the Joint Committee's directive, several motions were filed but
were denied by the Joint Committee. Consequently, petitioners' right to submit
counter-affidavit and countervailing evidence was forfeited. Taking into account
the constitutional right to speedy disposition of cases and following the
procedures set forth in the Rules on Criminal Procedure and the Comelec Rules
of Procedure, the Joint Committee finally reached its conclusion and referred the
case to the Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the opportunity to be heard.
They even actively participated in the proceedings and in fact filed several
motions before the Joint Committee. Consistent with the constitutional mandate
of speedy disposition of cases, unnecessary delays should be avoided.
AIaDcH

Finally, we take judicial notice that on February 23, 2012, GMA was already
arraigned and entered a plea of "not guilty" to the charge against her and
thereafter filed a Motion for Bail which has been granted. Considering that the
constitutionality of the creation of the Joint Panel is sustained, the actions of the
Joint Committee and Fact-Finding Team are valid and effective. As the
information was filed by the Commission authorized to do so, its validity is
sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on
the part of GMA of her right to submit counter-affidavit and countervailing
evidence before the Joint Committee, and recognition of the validity of the
information against her. Her act indicates that she opts to avail of judicial
remedies instead of the executive remedy of going back to the Joint Committee
for the submission of the counter-affidavit and countervailing evidence. Besides,
as discussed earlier, the absence [or irregularity] of preliminary investigation does
not affect the court's jurisdiction over the case nor does it impair the validity of the
criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the
cases before the Court moot and academic as the main issues raised by
petitioners are the constitutionality of the creation of the Joint Committee and the

Fact-Finding Team and the validity of the proceedings undertaken pursuant to


their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of
the cases of the other respondents subjects of the preliminary investigation as
some of them were subjected to further investigation. In order to remove the
cloud of doubt that pervades that petitioners are being singled out, it is to the best
interest of all the parties concerned that the Joint Committee and the Comelec
terminate the proceedings as to the other respondents therein and not make a
piecemeal disposition of the cases.
IcESaA

A peripheral issue which nonetheless deserves our attention is the question


about the credibility of the Comelec brought about by the alleged professional
relationship between Comelec Chairman Brillantes on one hand and the
complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMA's rival in the
2004 elections, on the other hand; and by the other Commissioners' 147 reasons
for their partial inhibition. To be sure, Chairman Brillantes' relationship with FPJ
and Senator Pimentel is not one of the grounds for the mandatory disqualification
of a Commissioner. At its most expansive, it may be considered a ground for
voluntary inhibition which is indeed discretionary as the same was primarily a
matter of conscience and sound discretion on the part of the Commissioner judge
based on his or her rational and logical assessment of the case. 148 Bare
allegations of bias and prejudice are not enough in the absence of clear and
convincing evidence to overcome the presumption that a judge will undertake his
noble role to dispense justice according to law and evidence without fear or
favor. 149 It being discretionary and since Commissioner Brillantes was in the best
position to determine whether or not there was a need to inhibit from the case, his
decision to participate in the proceedings, in view of higher interest of justice,
equity and public interest, should be respected. While a party has the right to
seek the inhibition or disqualification of a judge (or prosecutor or Commissioner)
who does not appear to be wholly free, disinterested, impartial, and independent
in handling the case, this right must be weighed with his duty to decide cases
without fear of repression. 150
Indeed, in Javier v. Comelec, 151 the Court set aside the Comelec's decision
against Javier when it was disclosed that one of the Commissioners who had

decided the case was a law partner of Javier's opponent and who had refused to
excuse himself from hearing the case. Javier, however, is not applicable in this
case. First, the cited case involves the Comelec's exercise of its adjudicatory
function as it was called upon to resolve the propriety of the proclamation of the
winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the
grounds for inhibition/disqualification were applicable. Second, the case arose at
the time where the purity of suffrage has been defiled and the popular will
scorned through the confabulation of those in authority. 152 In other words, the
controversy arose at the time when the public confidence in the Comelec was
practically nil because of its transparent bias in favor of the
administration. 153 Lastly, in determining the propriety of the decision rendered by
the Comelec, the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents therein, Arturo F.
Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner
Opinion) but also the general attitude of the Comelec toward the party in power at
that time. Moreover, the questioned Comelec decision was rendered only by a
division of the Comelec. The Court thus concluded in Javier that Commissioner
Opinion's refusal to inhibit himself divested the Comelec's Second Division of the
necessary vote for the questioned decision and rendered the proceedings null
and void. 154
On the contrary, the present case involves only the conduct of preliminary
investigation and the questioned resolution is an act of the Comelec En
Banc where all the Commissioners participated and more than a majority (even if
Chairman Brillantes is excluded) voted in favor of the assailed Comelec
resolution. Unlike in 1986, public confidence in the Comelec remains. The
Commissioners have already taken their positions in light of the claim of "bias
and partiality" and the causes of their partial inhibition. Their positions should be
respected confident that in doing so, they had the end in view of ensuring that the
credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any
constitutional or legal impediment to the creation of the Joint DOJ-Comelec
Preliminary Investigation Committee and Fact-Finding Team.

First, while GMA and Mike Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to GMA; thus, Joint Order
No. 001-2011 does not violate the equal protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged
prejudgment of the case as petitioners failed to prove that the Joint Panel itself
showed such bias and partiality against them. Neither was it shown that the
Justice Secretary herself actually intervened in the conduct of the preliminary
investigation. More importantly, considering that the Comelec is a collegial body,
the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot
be considered an act of the body itself.
CaHAcT

Third, the assailed Joint Order did not create new offices because the Joint
Committee and Fact-Finding Team perform functions that they already perform by
virtue of the Constitution, the statutes, and the Rules of Court.
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have
abdicated its independence in favor of the executive branch of government.
Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its
duty of ensuring the prompt investigation and prosecution of election offenses as
an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and
credible elections. The role of the DOJ in the conduct of preliminary investigation
of election offenses has long been recognized by the Comelec because of its
lack of funds and legal officers to conduct investigations and to prosecute such
cases on its own. This is especially true after R.A. No. 9369 vested in the
Comelec and the DOJ the concurrent jurisdiction to conduct preliminary
investigation of all election offenses. While we uphold the validity of Comelec
Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint
Committee's Rules of Procedure infirm for failure to comply with the publication
requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the
1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a
copy of the complaint, the affidavits, and other supporting documents submitted
to the Joint Committee and they were required to submit their counter-affidavit
and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the

pendency of the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their failure to file
the required counter-affidavits. With the foregoing disquisitions, we find no reason
to nullify the proceedings undertaken by the Joint Committee and the Comelec in
the electoral sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions
are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint
Order No. 001-2011 dated August 15, 2011, and the Fact-Finding Team's Initial
Report dated October 20, 2011, are declared VALID. However, the Rules of
Procedure on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack
of publication.
cAaETS

In view of the constitutionality of the Joint Panel and the proceedings having been
conducted in accordance with Rule 112 of the Rules on Criminal Procedure and
Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where
the criminal cases for electoral sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch.
SO ORDERED.
Velasco, Jr., Bersamin, Del Castillo, Perez, Mendoza, Reyes and PerlasBernabe, JJ., concur.
Sereno, C.J., I concur, except for the part where J. Carpio dissents.
Carpio, J., see separate concurring & dissenting opinion.
Leonardo-de Castro, J., I join the dissenting and concurring opinion of Justice
Brion.
Brion, J., see my dissenting & concurring opinion.
Abad, J., I join Justice A. D. Brion in his dissent.
Villarama, Jr., J., is on official leave.

Separate Opinions
BRION, J., dissenting and concurring:
The Boiling Frog
Place a frog in boiling water, and
it will jump out to save itself;
But place it in cold water
and slowly apply heat,
and the frog will boil to death. 1
I open this Dissenting and Concurring Opinion with the tale of the metaphorical
"boiling frog" to warn the Court and the readers about the deeper implications of
this case a case that involves a major breach of the Philippine
Constitution where the frog stands for the independence of the
Commission on Elections (COMELEC).
As one American article on the metaphor puts it, 2 "[I]f people become acclimated
to some policy or state of affairs over a sufficient period of time, they come to
accept the policy or state of affairs as normal. . . The Boiling Frog Syndrome
explains how the American public has come to accept breaches of Constitutional
government that would have provoked armed resistance a hundred years ago.
The public has grown accustomed to these breaches, and to the federal
government conducting myriad activities that are nowhere authorized by the
Constitution and accepts them as normal." 3
In the Philippine setting, the various Philippine Constitutions have expressly
guaranteed independence to the Judiciary, to the Office of the Ombudsman, and
to the Constitutional Commissions, one of which is the COMELEC. The
independence is mainly against the intrusion of the Executive, 4 the government
department that implements the laws passed by the Legislature and that
administered and controlled the conduct of elections in the past. 5 The Judiciary
has so far fully and zealously guarded the role of these institutions and their
independence in the constitutional scheme, but the nation cannot rest on this
record and must ever be vigilant.

While gross and patent violations of the guarantee of independence will not sit
well with, and will not be accepted by, the people, particularly in this age of
information and awareness, ways other than the gross and the patent, exist to
subvert the constitutional guarantee of independence. The way is through small,
gradual andincremental changes boiling the frog that people will not
notice, but which, over time, will slowly and surely result in the subjugation of the
independent institutions that the framers of the Constitution established to ensure
balance and stability in a democratic state where the separation of powers
among the three branches of government, and checks and balances, are the
dominant rules.
AEIHCS

This is what the present case is all about a subtle change that people
will hardly notice except upon close and critical study, and until they look
around them for other subtle changes in other areas of governance, all of
them put into place with the best professed intentions but tending to
subvert the structures that the framers of the Constitution very carefully
and thoughtfully established. Unless utmost vigilance is observed and
subtle subverting changes are immediately resisted, the people may never
fully know how their cherished democratic institutions will come to naught;
through slow and gradual weakening, these democratic institutions like
the frog will end up dead. Sadly, this process of gradualism is what the
Court allows in the present case.
It is in this context that I filed this Dissent from the majority's conclusion
that COMELEC Resolution No. 9266 and Joint Order No. 001-2011 are valid
and constitutional, although I ultimately concur with the majority's
resulting conclusion, based on non-constitutional grounds, that the
petitions should be dismissed. I maintain that these assailed issuances are
fatally defective and should be struck down for violating the constitutionally
guaranteed independence ofCOMELEC.
In its rulings, the majority held that the petitioners failed to establish any
constitutional or legal impediment to the creation of the Joint Department of
Justice
(DOJ)-COMELEC
Preliminary
Investigation
Committee (Joint
Committee) and the Fact-Finding Team. It likewise held that the petitioners'
issues relating to equal protection, due process, separation of powers,

requirement of publication, and bias on the part of COMELEC Chairman Sixto


Brillantes are unmeritorious. 6 The fountainhead of all these issues, however, is
the validity of the creation of, and the exercise of their defined functions by, the
DOJ-COMELEC committees; the issues the majority ruled upon all spring from
the validity of this creation. On this point, I completely disagree with the majority
and its ruling that the COMELEC did not abdicate its functions and independence
in its joint efforts with the DOJ.
I submit that in the Resolutions creating the committees and providing for
the exercise of their power to conduct fact-finding and preliminary
investigation in the present case, the COMELEC unlawfully ceded its
decisional independence by sharing it with the DOJ an agency under the
supervision, control and influence of the President of the Philippines.
The discussions below fully explain the reasons for my conclusion.

DcCHTa

I. The Independence of the COMELEC


a. Historical Roots
The establishment of the COMELEC traces its roots to an amendment of
the 1935 Constitution in 1940, prompted by dissatisfaction with the manner
elections were conducted then in the country. 7 Prior to this development, the
supervision of elections was previously undertaken by the Department of Interior,
pursuant to Section 2, Commonwealth Act No. 357 of the First National
Assembly. The proposal to amend the Constitution was subsequently embodied
in Resolution No. 73, Article III of the Second National Assembly, adopted on
April 11, 1940, and was later approved on December 2, 1940 as Article X of
the 1935 Constitution: 8
The administrative control of elections now exercised by the Secretary
of Interior is what is sought to be transferred to the Commission on
Elections by the proposed constitutional amendment now under
discussion. The courts and the existing Electoral Commission
(electoral tribunal) retain their original powers over contested
elections. 9

This development was described as "a landmark event in Philippine political


history" 10 that put in place a "novel electoral device designed to have the entire
charge of the electoral process of the nation." 11 A legal commentator noted:
The proposition was to entrust the conduct of our elections to an
independent entity whose sole work is to administer and enforce the
laws on elections, protect the purity of the ballot and safeguard the free
exercise of the right of suffrage. The Commission on Elections was
really existing before 1940 as a creation of a statute passed by the
National Assembly; but it necessitated a constitutional amendment
to place it outside the influence of political parties and the control
of the legislative, executive and judicial departments of the
government. It was intended to be an independent administrative
tribunal, co-equal with other departments of the government in
respect to the powers vested in it. 12 [emphasis and underscoring
supplied]

Nine years later, the COMELEC's independence was tested in Nacionalista Party
v. Bautista, 13 where the Court dealt with the question of whether the designation,
by then President Elpidio Quirino, of Solicitor General Felix Angelo Bautista as
Acting Member of the COMELEC pending the appointment of a permanent
member to fill the vacancy caused by the retirement of Commissioner Francisco
Enage was unlawful and unconstitutional. The Court ruled that the designation
was repugnant to the Constitution which guarantees the independence of the
COMELEC, and said:
Under the Constitution, the Commission on Elections is an independent
body or institution (Article X of the Constitution), just as the General
Auditing Office is an independent office (Article XI of the Constitution).
Whatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to
be independent from the other departments of the Government. . . .
By the very nature of their functions, the members of the Commission on
Elections must be independent. They must be made to feel that they are
secured in the tenure of their office and entitled to fixed emoluments
during their incumbency (economic security), so as to make them
impartial in the performance of their functions their powers and duties.

They are not allowed to do certain things, such as to engage in the


practice of a profession; to intervene, directly or indirectly, in the
management or control of any private enterprise; or to be financially
interested in any contract with the Government or any subdivision or
instrumentality thereof (sec. 3, Article X, of the Constitution). These
safeguards are all conducive or tend to create or bring about a condition
or state of mind that will lead the members of the Commission to perform
with impartiality their great and important task and functions. That
independence and impartiality may be shaken and destroyed by a
designation of a person or officer to act temporarily in the
Commission on Elections. And, although Commonwealth Act No.
588 provides that such temporary designation "shall in no case continue
beyond the date of the adjournment of the regular session of the
National Assembly (Congress) following such designation," still such limit
to the designation does not remove the cause for the impairment of the
independence of one designated in a temporary capacity to the
Commission on Elections. It would be more in keeping with the
intent, purpose and aim of the framers of the Constitution to
appoint a permanent Commissioner than to designate one to act
temporarily. Moreover, the permanent office of the respondent may
not, from the strict legal point of view, be incompatible with the
temporary one to which he has been designated, tested by the
nature and character of the functions he has to perform in both
offices, but in a broad sense there is an incompatibility, because
his duties and functions as Solicitor General require that all his
time be devoted to their efficient performance. Nothing short of that is
required and expected of him. 14 [emphasis ours]
aDTSHc

Thus, as early as 1949, this Court has started to guard with zeal the COMELEC's
independence, never losing sight of the crucial reality that its "independence
[is] the principal justification for its creation." 15 The people's protectionist
policy towards the COMELEC has likewise never since wavered and, in fact,
has prevailed even after two amendments of our Constitution in 1973 and
1987 an enduring policy highlighted by then Associate Justice Reynato Puno
in his concurring opinion inAtty. Macalintal v. COMELEC: 16

The Commission on Elections (COMELEC) is a constitutional


body exclusively charged with the enforcement and administration of
"all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall," and is invested with the power to
decide all questions affecting elections save those involving the right to
vote.
Given its important role in preserving the sanctity of the right of suffrage,
the COMELEC was purposely constituted as a body separate from
the
executive,
legislative,
and
judicial
branches
of
government. Originally, the power to enforce our election laws was
vested with the President and exercised through the Department of the
Interior. According to Dean Sinco, however, the view ultimately
emerged that an independent body could better protect the right of
suffrage of our people. Hence, the enforcement of our election laws,
while an executive power, was transferred to the COMELEC.
The shift to a modified parliamentary system with the adoption of
the 1973 Constitution did not alter the character of COMELEC as an
independent body. Indeed, a "definite tendency to enhance and
invigorate the role of the Commission on Elections as the independent
constitutional body charged with the safeguarding of free, peaceful and
honest
elections"
has
been
observed.
The 1973
Constitution broadened the power of the COMELEC by making it
the sole judge of all election contests relating to the election, returns
and qualifications of members of the national legislature and elective
provincial and city officials. Thus, the COMELEC was given judicial
power aside from its traditional administrative and executive functions.
The trend towards strengthening the COMELEC continued with
the 1987 Constitution. Today, the COMELEC enforces and administers
all laws and regulationsrelative to the conduct of elections, plebiscites,
initiatives, referenda and recalls. Election contests involving regional,
provincial and city elective officials are under its exclusive original
jurisdiction
while
all
contests
involving
elective
municipal
and barangay officials are under its appellate jurisdiction. 17 (citations
omitted)

At present, the 1987 Constitution (as has been the case since the amendment of
the 1935 Constitution) now provides that the COMELEC, like all other
Constitutional Commissions, shall be independent. It provides that:
Section
1. The
Constitutional
Commissions,
which
shall
be independent, are the Civil Service Commission, the Commission
on Elections, and the Commission on Audit. [emphasis ours]

The unbending doctrine laid down by the Court in Nationalista Party was
reiterated in Brillantes, Jr. v. Yorac, 18 a 1990 case where no less than the
present respondent COMELEC Chairman Brillantes challenged then President
Corazon C. Aquino's designation of Associate Commissioner Haydee Yorac as
Acting Chairman of the COMELEC, in place of Chairman Hilario Davide.
In ruling that the Constitutional Commissions, labeled as "independent" under the
Constitution, are not under the control of the President even if they discharge
functions that are executive in nature, the Court again vigorously denied
"Presidential interference" in these constitutional bodies and held:
Article IX-A, Section 1, of the Constitution expressly describes all the
Constitutional Commissions as "independent." Although essentially
executive in nature, they are not under the control of the President of the
Philippines in the discharge of their respective functions. Each of these
Commissions conducts its own proceedings under the applicable laws
and its own rules and in the exercise of its own discretion. Its decisions,
orders and rulings are subject only to review on certiorari by this Court
as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular
chairman comes under that discretion. That discretion cannot be
exercised for it, even with its consent, by the President of the Philippines.
xxx xxx xxx
The lack of a statutory rule covering the situation at bar is no justification
for the President of the Philippines to fill the void by extending the
temporary designation in favor of the respondent. This is still a
government of laws and not of men. The problem allegedly sought to be
corrected, if it existed at all, did not call for presidential action. The
situation could have been handled by the members of the Commission

on Elections themselves without the participation of the President,


however well-meaning.
xxx xxx xxx
The Court has not the slightest doubt that the President of the
Philippines was moved only by the best of motives when she issued the
challenged designation. But while conceding her goodwill, we cannot
sustain her act because it conflicts with the Constitution. Hence, even as
this Court revoked the designation in the Bautista case, so too must it
annul the designation in the case at bar. 19

In 2003, Atty. Macalintal v. Commission on Elections 20 provided yet another


opportunity for the Court to demonstrate how it ardently guards the independence
of the COMELEC against unwarranted intrusions.
TCEaDI

This time, the stakes were higher as Mme. Justice Austria-Martinez, writing for
the majority, remarked: "Under . . . [the] situation, the Court is left with no option
but to withdraw . . . its usual reticence in declaring a provision of law
unconstitutional." 21 The Court ruled that Congress, a co-equal branch of
government, had no power to review the rules promulgated by the COMELEC for
the implementation of Republic Act (RA) No. 9189 or The Overseas Absentee
Voting Act of 2003, since it "trample[s] upon the constitutional mandate of
independence of the COMELEC." 22 Thus, the Court invalidated Section 25 (2)
of RA No. 9189 and held:
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such
provision is Section 1 of Article IX-A of the 1987
Constitution ordaining that constitutional commissions such as the
COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that
there shall be an independent COMELEC, the Court has held that
"[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government." In an
earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is


intended to play a distinct and important part in our scheme of
government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the
case of a less responsible organization. The Commission may err,
so may this court also. It should be allowed considerable latitude
in devising means and methods that will [e]nsure the
accomplishment of the great objective for which it was created
free, orderly and honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this court should not interfere. Politics is
a practical matter, and political questions must be dealt with
realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political
questions. (italics supplied)
The Court has no general powers of supervision over COMELEC
which is an independent body "except those specifically granted by the
Constitution," that is, to review its decisions, orders and rulings. In the
same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may
intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to "issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the effectivity
of this Act." This provision of law follows the usual procedure in drafting
rules and regulations to implement a law the legislature grants an
administrative agency the authority to craft the rules and regulations
implementing the law it has enacted, in recognition of the administrative
expertise of that agency in its particular field of operation. Once a law is
enacted and approved, the legislative function is deemed accomplished
and complete. The legislative function may spring back to Congress
relative to the same law only if that body deems it proper to review,

amend and revise the law, but certainly not to approve, review,
revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and
revise the IRR for The Overseas Absentee Voting Act of 2003,
Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the Court
is left with no option but to withdraw from its usual reticence in
declaring a provision of law unconstitutional.
EAcTDH

The second sentence of the first paragraph of Section 19 stating that


"[t]he Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act for
prior approval," and the second sentence of the second paragraph of
Section 25 stating that "[i]t shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission,"
whereby Congress, in both provisions, arrogates unto itself a function not
specifically vested by the Constitution, should be stricken out of the
subject statute for constitutional infirmity. Both provisions brazenly violate
the mandate on the independence of the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional
Oversight Committee" in the first sentence of Section 17.1 which
empowers the Commission to authorize voting by mail in not more than
three countries for the May, 2004 elections; and the phrase, "only upon
review and approval of the Joint Congressional Oversight Committee"
found in the second paragraph of the same section are unconstitutional
as they require review and approval of voting by mail in any country after
the 2004 elections. Congress may not confer upon itself the authority to
approve or disapprove the countries wherein voting by mail shall be
allowed, as determined by the COMELEC pursuant to the conditions
provided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress
would overstep the bounds of its constitutional mandate and intrude into
the independence of the COMELEC. 23 [citations omitted, emphases
ours]

Thus, from the perspective of history, any ruling from this Court as
the ponencia now makes allowing the COMELEC to share its decisional

independence with the Executive would be a first as well as a major


retrogressive jurisprudential development. It is a turning back of the
jurisprudential clock that started ticking in favor of the COMELEC's
independence in 1940 or 72 years ago.
b. The COMELEC's
Election Offenses

Power

to

Investigate

and

Prosecute

At the core of the present controversy is the COMELEC's exercise of its power to
investigate and prosecute election offenses under Section 2, Article IX (C) of
the 1987 Constitution. It states that the COMELEC shall exercise the following
power and function:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offences
and malpractices. [emphasis supplied]

In Barangay Association for National Advancement and Transparency (BANAT)


Party-List v. Commission on Elections, 24 the Court traced the legislative history
of the COMELEC's power to investigate and prosecute election offenses, and
concluded that the grant of such power was not exclusive:
TaCSAD

Section 2(6), Article IX-C of the Constitution vests in the COMELEC the
power to "investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices." This was an important
innovation introduced by the Constitution because this provision
was not in the 1935 or 1973 Constitutions. The phrase "[w]here
appropriate" leaves to the legislature the power to determine the
kind of election offenses that the COMELEC shall prosecute
exclusively or concurrently with other prosecuting arms of the
government.
The grant of the "exclusive power" to the COMELEC can be found in
Section 265 of BP 881 [Omnibus Election Code], which provides:

Sec. 265. Prosecution. The Commission shall, through its duly


authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail
of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the
Commission fails to act on any complaint within four months from
his filing, the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper investigation
and prosecution, if warranted. (Emphasis supplied)
This was also an innovation introduced by BP 881. The history of
election laws shows that prior to BP 881, no such "exclusive
power" was ever bestowed on the COMELEC.
We also note that while Section 265 of BP 881 vests in the COMELEC
the "exclusive power" to conduct preliminary investigations and
prosecute election offenses, it likewise authorizes the COMELEC to
avail itself of the assistance of other prosecuting arms of the
government. In the 1993 COMELEC Rules of Procedure, the authority
of the COMELEC was subsequently qualified and explained. The 1993
COMELEC Rules of Procedure provides:
Rule 34 Prosecution of Election Offenses
Sec. 1. Authority of the Commission to Prosecute Election
Offenses. The Commission shall have the exclusive
power to conduct preliminary investigation of all
election offenses punishable under the election laws
and to prosecute the same, except as may otherwise
be provided by law. 25 (citations omitted, emphases
ours)

As outlined in that case, Section 265 of Batas Pambansa Blg. 881 (BP 881) of
the Omnibus Election Code granted the COMELEC the exclusive power to
conduct preliminary investigations and prosecute election offenses. Looking then
at the practical limitations arising from such broad grant of power, Congress also
empowered the COMELEC to avail of the assistance of the prosecuting arms of
the government.
SEDIaH

Under the 1993 COMELEC Rules of Procedure, the Chief State Prosecutor, all
Provincial and City Fiscals, and/or their respective assistants were given
continuing authority, as deputies of the COMELEC, to conduct preliminary
investigation of complaints involving election offenses under election laws that
may be filed directly with them, or that may be indorsed to them by the
COMELEC or its duly authorized representatives and to prosecute the same. 26
Under the same Rules, the Chief State Prosecutor, Provincial Fiscal or City Fiscal
were authorized to receive complaints for election offenses and after which the
investigation may be delegated to any of their assistants. 27 After the
investigation, the investigating officer shall issue either a recommendation to
dismiss the complaint or a resolution to file the case in the proper courts; this
recommendation, however, was subject to the approval by the Chief State
Prosecutor, Provincial or City Fiscal, and who shall also likewise approve the
information prepared and immediately cause its filing with the proper
court. 28 The Rule also provide that resolution of the Chief State Prosecutor or
the Provincial or City Fiscal, could be appealed with the COMELEC within ten
(10) days from receipt of the resolution, provided that the same does not divest
the COMELEC of its power to motu proprio review, revise, modify or reverse the
resolution of the Chief State Prosecutor and/or provincial/city prosecutors. 29
In the recent case of Dio v. Olivarez, 30 the Court had the occasion to expound
on the nature and consequences of the delegated authority of the Chief State
Prosecutor, Provincial or City Fiscal and their assistants to conduct preliminary
investigations and to prosecute election offenses, as follows:
From the foregoing, it is clear that the Chief State Prosecutor, all
Provincial and City Fiscals, and/or their respective assistants have been
given continuing authority, as deputies of the Commission, to conduct a
preliminary investigation of complaints involving election offenses under
the election laws and to prosecute the same. Such authority may be
revoked or withdrawn anytime by the COMELEC, either expressly or
impliedly, when in its judgment such revocation or withdrawal is
necessary to protect the integrity of the process to promote the common
good, or where it believes that successful prosecution of the case can be
done by the COMELEC.Moreover, being mere deputies or agents of
the COMELEC, provincial or city prosecutors deputized by the

Comelec are expected to act in accord with and not contrary to or


in derogation of its resolutions, directives or orders of the Comelec
in relation to election cases that such prosecutors are deputized to
investigate and prosecute. Being mere deputies, provincial and city
prosecutors, acting on behalf of the COMELEC, must proceed
within the lawful scope of their delegated authority. 31 [citations
omitted, emphasis ours]

In 2007, Congress enacted RA No. 9369, amending BP 881, among others,


on the authority to preliminarily investigate and prosecute. Section 43 of RA
No. 9369, amending Section 265 of BP 881, provides:
SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended
to read as follow[s]:
ADEaHT

"SEC. 265. Prosecution. The Commission shall, through its duly


authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and
prosecute the same." [emphases and underscoring ours]

In 2009, the petitioner and the COMELEC in BANAT v. Commission on


Election 32 questioned the constitutionality of Section 43 of RA No. 9369. They
argued that the Constitution vests in the COMELEC the exclusive power to
investigate and prosecute cases of violations of election laws. They also alleged
that Section 43 of RA No. 9369is unconstitutional because it gives the other
prosecuting arms of the government concurrent power with the COMELEC to
investigate and prosecute election offenses.
In ruling that Section 2, Article IX (C) of the Constitution did not give the
COMELEC the exclusive power to investigate and prosecute cases of violations
of election laws and, consequently, that Section 43 of RA No. 9369 is
constitutional, the Court held:
We do not agree with petitioner and the COMELEC that the
Constitution gave the COMELEC the "exclusive power" to investigate
and prosecute cases of violations of election laws.
xxx xxx xxx

It is clear that the grant of the "exclusive power" to investigate and


prosecute election offenses to the COMELEC was not by virtue of the
Constitution but by BP 881, a legislative enactment. If the intention of the
framers of the Constitution were to give the COMELEC the "exclusive
power" to investigate and prosecute election offenses, the framers would
have expressly so stated in the Constitution. They did not.
In People v. Basilla, we acknowledged that without the assistance of
provincial and city fiscals and their assistants and staff members, and of
the state prosecutors of the Department of Justice, the prompt and fair
investigation and prosecution of election offenses committed before or in
the course of nationwide elections would simply not be possible.
In COMELEC v. Espaol, we also stated that enfeebled by lack of funds
and the magnitude of its workload, the COMELEC did not have a
sufficient number of legal officers to conduct such investigation and to
prosecute such cases. The prompt investigation, prosecution, and
disposition of election offenses constitute an indispensable part of the
task of securing free, orderly, honest, peaceful, and credible elections.
Thus, given the plenary power of the legislature to amend or repeal laws,
if Congress passes a law amending Section 265 of BP 881, such law
does not violate the Constitution. 33 [citations omitted; italics
supplied]
AaIDCS

Thus, as the law now stands, the COMELEC has concurrent jurisdiction
with other prosecuting arms of the government, such as the DOJ, to
conduct preliminary investigation of all election offenses punishable under
the Omnibus Election Code, and to prosecute these offenses.
c. The COMELEC and the Supreme Court
Separately from the COMELEC's power to investigate and prosecute election
offenses (but still pursuant to its terms) is the recognition by the Court that the
COMELEC exercises considerable latitude and the widest discretion in adopting
its chosen means and methods of discharging its tasks, particularly in its broad
power "to enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall." 34 In the recent case
of Bedol v. Commission on Elections, 35 the Court characterized the COMELEC's
power to conduct investigations and prosecute elections offenses as "adjunct to

its constitutional duty to enforce and administer all election laws." 36 For this
reason, the Court concluded that the aforementioned power "should be construed
broadly," 37 i.e., "to give the COMELEC all the necessary and incidental powers
for it to achieve the objective of holding free, orderly, honest, peaceful, and
credible elections." 38
In this regard, I agree with the majority that the COMELEC must be given
considerable latitude in the fulfillment of its duty of ensuring the prompt
investigation and prosecution of election offenses. I duly acknowledge that
the COMELEC exercises considerable latitude and the widest discretion in
adopting its chosen means and methods of discharging its tasks, particularly its
broad power "to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall." 39 An
expansive view of the powers of the COMELEC has already been emphasized by
the Court as early as 1941 (under the 1935 Constitution) in Sumulong, President
of the Pagkakaisa ng Bayan v. Commission on Elections, 40 where the Court
held:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions that
would be fully warranted in the case of a less responsible organization.
The Commission may err, so may this court also. It should be allowed
considerable latitude in devising means and methods that will
[e]nsure the accomplishment of the great objective for which it was
created free, orderly and honest elections. We may not agree
fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this court should not
interfere. Politics is a practical matter, and political questions must be
dealt with realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from actual
experience in dealing with political controversies, is in a peculiarly
advantageous
position
to
decide
complex
political
questions. 41 [emphasis ours]
aHIEcS

To place this view in constitutional perspective, the independence granted to the


COMELEC is as broad as that granted to the Office of the Ombudsman, another
constitutional entity engaged in the investigation and prosecution of offenses, this
time with respect to those committed by public officers and employees in the
performance of their duties. We have uniformly held that this Court shall fully
respect the Office of the Ombudsman's independence in the performance of its
functions, save only where it commits grave abuse of discretion; 42 in this
eventuality it becomes the duty of this Court to intervene pursuant to Section 1,
Article VIII of the Constitution.
As it has been with the Ombudsman, so should independence in investigative
and prosecutory functions be with the COMELEC and its authority to investigate
and prosecute election offenses. In the same manner, the broad discretion
granted has its limits. Lest it be forgotten, in addition to its power to guard
against grave abuse of discretion mentioned above, this Court, as the last resort
tasked to guard the Constitution and our laws through interpretation and
adjudication of justiciable controversies, possesses oversight powers to ensure
conformity with the Constitution the ultimate instrument that safeguards and
regulates our electoral processes and policies and which underlies all these laws
and the COMELEC's regulations. 43
CDESIA

In other words, while the Court acknowledges that the COMELEC "reigns
supreme" in determining the means and methods by which it acts in the
investigation and prosecution of election offenses, it cannot abdicate its duty to
intervene when the COMELEC acts outside the contemplation of the
Constitution and of the law, 44 such as when it sheds off its independence
contrary to the Constitution by sharing its decision-making with the DOJ.
In the context of the present case, this constitutional safeguard gives rise
to the question: Did the COMELEC gravely abuse its discretion in issuing
COMELEC Resolution No. 9266 and Joint Order No. 001-2011? My answer is
a resounding yes.
II. COMELEC
Resolution
No.
Order No. 001-2011 Examined

9266

and

Joint

COMELEC Resolution No. 9266 is merely a preparatory resolution reflecting the


COMELEC en banc's approval of the creation of a committee with the DOJ to
conduct preliminary investigation on the alleged election offenses and anomalies
committed during the 2004 and 2007 elections. 45
Joint Order No. 001-2011, on the other hand, creates two committees or teams to
investigate and conduct preliminary investigation on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation case the Fact-Finding Team and
the Joint DOJ-COMELEC Preliminary Investigation Committee (Joint
Committee). 46
Under Section 5 of the Joint Order, the Fact-Finding Team shall be chaired by
an Assistant Secretary of the DOJ, and shall have six members: two (2) from
the National Bureau of Investigation (NBI); two (2) from the DOJ and two (2) from
the COMELEC. Thus, effectively, the COMELEC has ceded primacy in factfinding functions to the Executive, given the composition of this team as the NBI
is an executive investigation agency under the DOJ.
Under Section 4 of the Joint Order, the Fact-Finding Team is tasked to:
1) Gather and document reports, intelligence information and
investigative leads from official as well as unofficial sources and
informants;
DTIcSH

2) Conduct interviews, record testimonies, take affidavits of witnesses


and collate material and relevant documentary evidence, such as,
but not limited to, election documents used in the 2004 and 2007
national elections. For security reasons, or to protect the identities
of informants, the Fact-Finding Team may conduct interviews, or
document testimonies discreetly;
3) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the
Fact-Finding Team and/or the Committee;
4) Identify the offenders, their offenses and the manner of their
commission, individually or in conspiracy, and the provisions of
election and general criminal laws violated, establish evidence for
individual criminal and administrative liability and prosecution, and

prepare the necessary documentation such as complaints and


charge sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted by the
Committee;
5) Regularly submit to the Committee, the Secretary of Justice and
the Chairman of the COMELEC periodic reports and
recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the
Committee's basis for immediately commencing appropriate
preliminary investigation proceedings, as provided for under
Section 6 of this Joint Order; and [emphases supplied]
6) Upon the termination of its investigation, make a full and final report to
the Committee, the Secretary of Justice, and the Chairman of the
COMELEC. 47

The Fact-Finding Team shall be under the supervision of the Secretary of the
DOJ and the Chairman of the COMELEC or, in the latter's absence, a Senior
Commissioner of the COMELEC. Under the Joint Order, the Fact-Finding Team
shall have a Secretariat to provide it with legal, technical and administrative
assistance.The Fact-Finding Team shall also have an office to be provided
by either the DOJ or the COMELEC. 48
cHaADC

Section 1 of the Joint Order provides that the Joint Committee is composed of
three (3) officials coming from the DOJ and two (2) officials from the COMELEC.
Prosecutor General Claro A. Arellano from the DOJ was designated as
Chairperson, to be assisted by the following members: 49
1) Provincial Prosecutor George C. Dee, DOJ
2) City Prosecutor Jacinto G. Ang, DOJ
3) Director IV Ferdinand T. Rafanan, COMELEC
4) Atty. Michael D. Villaret, COMELEC

Section 2 of the Joint Order sets the mandate of the Joint Committee which is to
"conduct the necessary preliminary investigation on the basis of the evidence
gathered and the charges recommended by the Fact-Finding Team." Resolutions
finding probable cause for election offenses, defined and penalized under BP

881 and other election laws, shall be approved by the COMELEC in accordance
with the COMELEC Rules of Procedure. 50
The procedure by which the resolutions finding probable cause is to be reviewed
and/or approved by the COMELEC is clearly set forth in Sections 3, 4 and 5 of
the Rules of Procedure on the Conduct of Preliminary Investigation on the
Alleged Election Fraud in the 2004 and 2007 Elections. Sections 3, 4 and 5 of the
Rules state:
Section 3. Resolution of the Committee. If the Committee finds cause
to hold respondent for trial, it shall prepare the resolution and
information. The Committee shall certify under oath in the information
that it, or as shown by the record, has personally examined the
complainant and the witnesses, that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof, that the accused was informed of the complaint
and of the evidence submitted against him; and that he was given the
opportunity to submit controverting evidence. Otherwise, the Committee
shall recommend the dismissal of the complaint.
AHDacC

Section 4. Approval of the Resolution. Resolutions of the


Committee relating to election offenses, defined and penalized
under the Omnibus Election Code, and other election laws shall be
approved by the COMELEC in accordance with the Comelec Rules of
Procedure.
For other offenses, or those not covered by the Omnibus Election
Code and other election laws, resolutions of the Committee shall be
approved by the Prosecutor General except in cases cognizable by the
Sandiganbayan, where the same shall be approved by the Ombudsman.
Section 5. Motion for Reconsideration. Motions for Reconsideration
on resolutions of the Committee involving violations of [the] Omnibus
Election Code and other election laws shall be resolved by the
COMELEC in accordance with its Rules.
For other cases not covered by the Omnibus Election Code, the Motion
for Reconsideration shall be resolved by the Committee in accordance
with the Rules of Criminal Procedure. 51 (emphasis ours)

Finally, Section 9 of the Joint Order provides for the budget and financial support
for the operation of the Joint Committee and the Fact-Finding Team which shall
be sourced from funds of the DOJ and the COMELEC, as may be requested from
the Office of the President. 52
a. The
Unconstitutional
the Existing Legal Framework

Distortion

of

Section 2, Article IX (C) of the Constitution specifically vests in the COMELEC


the plenary power to "investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election
frauds, offenses and malpractices." To discharge its duty effectively, the
Constitution endowed the COMELEC with special features which elevate it
above other investigative and prosecutorial agencies of the government.
cEAIHa

First and foremost, it extended independence to the COMELEC and insulated


it from intrusion by outside influences, political pressures and partisan
politics. In Atty. Macalintal v. COMELEC, 53 already cited above, then Associate
Justice Puno enumerated these safeguards to protect the independence of the
COMELEC, viz.:
Several safeguards have been put in place to protect the
independence of the COMELEC from unwarranted encroachment
by the other branches of government. While the President appoints
the Commissioners with the concurrence of the Commission on
Appointments, the Commissioners are not accountable to the
President in the discharge of their functions. They have a fixed
tenure and are removable only by impeachment. To ensure that not all
Commissioners are appointed by the same President at any one time, a
staggered system of appointment was devised. Thus, of the
Commissioners first appointed, three shall hold office for seven years,
three for five years, and the last three for three years. Reappointment
and temporary designation or appointment is prohibited. In case of
vacancy, the appointee shall only serve the unexpired term of the
predecessor. The COMELEC is likewise granted the power to
promulgate its own rules of procedure, and to appoint its own officials
and employees in accordance with Civil Service laws.

The COMELEC exercises quasi-judicial powers but it is not part of


the judiciary. This Court has no general power of supervision over the
Commission on Elections except those specifically granted by the
Constitution. As such, the Rules of Court are not applicable to the
Commission on Elections. In addition, the decisions of the COMELEC
are reviewable only by petition for certiorari on grounds of grave
abuse of discretion[.] 54 [emphasis ours, citations omitted]

Under the Constitution, the Executive is tasked with the enforcement of the laws
that the Legislature shall pass. In the administration of justice, the Executive has
the authority to investigate and prosecute crimes through the DOJ, constituted in
accordance with the Administrative Code. 55 Under our current laws, the DOJ has
general jurisdiction to conduct preliminary investigation of cases involving
violations of the Revised Penal Code. 56
TDCaSE

With respect to the power to conduct preliminary investigation and to prosecute


election offenses, Congress has mandated under Section 42 of RA No. 9369 that
the COMELEC shall have the power concurrent with the other prosecuting arms
of the government, to conduct preliminary investigation of all election offenses
punishable under the Omnibus Election Code, and to prosecute these
offenses. Concurrent jurisdiction has been defined as "equal jurisdiction to
deal with the same subject matter." 57
Thus, under the present legal framework, the COMELEC and the DOJ, and its
prosecuting arms, have equal jurisdiction to conduct preliminary investigation and
prosecute election offenses. Effectively, this means that the DOJ and its
prosecuting arms can already conduct preliminary investigations and prosecute
election offenses not merely as deputies, but independently of the COMELEC.
This concurrent jurisdiction mandated under Section 42 of RA No.
9369 must, however, be read together with and cannot be divorced from the
provisions of the Constitution guaranteeing the COMELEC's independence
as a Constitutional Commission, in particular, Sections 1, 2, 3, 4, 5 and 6 of
Article IX (A) of the 1987 Constitution. This constitutional guaranty of
independence cannot be taken lightly as it goes into the very purpose for which
the COMELEC was established as an independent Constitutional Commission.

To briefly recall and reiterate statutory and jurisprudential history, the COMELEC
was deliberately constituted as a separate and independent body from the other
branches of government in order to ensure the integrity of our electoral
processes; it occupies a distinct place in our scheme of government as the
constitutional body charged with the administration of our election laws. For this
reason, the Constitution and our laws unselfishly granted it powers and
independence in the exercise of its powers and the discharge of its
responsibilities. 58
The independence of the COMELEC is a core constitutional principle that is
shared and is closely similar to the judicial independence that the Judiciary
enjoys because they are both expressly and textually guaranteed by
our Constitution. Judicial independence has been characterized as "a concept
that expresses the ideal state of the judicial branch of government; it
encompasses the idea that individual judges and the judicial branch as a whole
should work free of ideological influence." 59
The general concept of "judicial independence" can be "broken down into two
distinct
concepts: decisional
independence and institutional, or
branch,independence." Decisional independence "refers to a judge's ability
to render decisions free from political or popular influence based solely on
the individual facts and applicable law." On the other hand, institutional
independence "describes the separation of the judicial branch from the executive
and legislative branches of government." 60 "Decisional independence is
the sine qua non of judicial independence." 61
In the exercise of the COMELEC's power to investigate and prosecute election
offenses, the "independence" that the Constitution guarantees the COMELEC
should be understood in the context of the same "decisional independence" that
the Judiciary enjoys since both bodies ascertain facts and apply the laws to these
facts as part of their mandated duties.
cHITCS

In concrete terms, the "decisional independence" that the COMELEC should


ideally have in the exercise of its power to investigate and prosecute
election offenses, requires the capacity to exercise these functions
according to its own discretion and independent consideration of the facts,

the evidence and the applicable law, "free from attempts by the legislative
or executive branches or even the public to influence the outcome of . . .
[the] case." 62 And even if the power to investigate and prosecute election
offences, upon determination of the existence of probable cause, are executive
and not judicial functions, the rationale behind the constitutional independence of
the Judiciary and the COMELEC is geared towards the same objective of depoliticization of these institutions which are and should remain as non-political
spheres of government.
Tested under these considerations, the result cannot but be the unavoidable
conclusion that what exists under Joint Order No. 001-2011 and the Rules of
Procedureon the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is not a scheme whereby the
COMELEC exercises its power to conduct preliminary investigation and to
prosecute elections offenses independently of other branches of
government but a shared responsibility between the COMELEC and the
Executive Branch through the DOJ.
This is the incremental change at issue in the present case, whose adoption
weakens the independence of the COMELEC, opening it to further incremental
changes on the basis of the ruling in this case. Under the ponencia's ruling
allowing a shared responsibility, the independence of the COMELEC ends up
a boiled frog; we effectively go back to the country's situation before 1940
with elections subject to intrusion by the Executive.
Significantly, the Solicitor General admitted during the oral arguments that the
reports and or recommendations of the Fact-Finding Team and Joint Committee
were a shared responsibility between the DOJ and the COMELEC
members, viz.:
aDcHIC

JUSTICE BRION:
With that agreement perhaps we have laid down the basis for the
constitutional hierarchy in this case. So that here we recognize
that the Bill of Rights is very important, the due process clause is
very important as against the police power of the State,
particularly in criminal prosecutions. Okay. Let me go now to a

very, very small point. The investigating team that was created by
the COMELEC-DOJ resolution, can you tell me how it operates?
SOLGEN CADIZ:
Your Honor, there are two (2) bodies created, collaborative effort most of
them. One is the fact-finding team and the other one is the
preliminary investigation committee.
JUSTICE BRION:
In the fact-finding team, what is the composition?
SOLGEN CADIZ:
DOJ, COMELEC and NBI.
JUSTICE BRION:
Two (2) members each?
SOLGEN CADIZ:
That is my recollection also, your Honor.

aCTADI

xxx xxx xxx


JUSTICE BRION:
So effectively the DOJ has four (4) representatives in that investigating
team, right?
SOLGEN CADIZ:
If that is the perspective, Your Honor, but the NBI of course, has a vastly
different function from the prosecutors of the DOJ.
JUSTICE BRION:
Who has supervision over this investigation team?
SOLGEN CADIZ:
Your Honor, it is a collaborative effort. There is no one head of this panel.
Likewise, as regards the preliminary investigation team which was
collaborative effort.

xxx xxx xxx


JUSTICE BRION:
What do the rules say? My question is as simple as that. Who has
supervision over the investigating team?
SOLGEN CADIZ:
The Preliminary Investigation Committee, Your Honor, the Fact-Finding
Team.
cCaATD

xxx xxx xxx


SOLGEN CADIZ:
Your Honor, it's here. Both the Secretary of Justice and the
COMELEC Chairman as I previously stated.
xxx xxx xxx
JUSTICE BRION:
And I heard from you before that the decision here was unanimous
among the members. They have no problem.
SOLGEN CADIZ:
In fact, Your Honor, the resolution of the COMELEC en banc says that it
gave great weight to the assent of the two COMELEC
representatives in the preliminary investigation team.
JUSTICE BRION:
Of the preliminary investigation, we are not there yet. We are only in the
fact-finding team.
SOLGEN CADIZ:
There was no dissension, Your Honor.
xxx xxx xxx
JUSTICE BRION:

They were unanimous. They agreed, they consulted with one another
and they agreed as their decision on what to send to their
superiors, right?
THIcCA

xxx xxx xxx


SOLGEN CADIZ:
There was a report to the preliminary investigation committee . . .
JUSTICE BRION:
So the report was unanimous?
SOLGEN CADIZ:
Yes, Your Honor.
JUSTICE BRION:
So this was a shared report?
JUSTICE BRION:
Okay. A shared understanding between the COMELEC and the DOJ.
SOLGEN CADIZ:
But maintaining their own identities, your Honor.
JUSTICE BRION:
Now, let's go to the preliminary investigation team. What was the
membership?
SOLGEN CADIZ:
Three (3) from DOJ and two (2) from COMELEC.
JUSTICE BRION:
Three (3) from DOJ and two (2) from COMELEC. They also came out
with their recommendations, right?
IAEcaH

SOLGEN CADIZ:
Yes, Your Honor.

JUSTICE BRION:
Were they also unanimous?
SOLGEN CADIZ:
Yes, Your Honor.
JUSTICE BRION:
So again this was a shared decision between the DOJ members
and the COMELEC members, right?
SOLGEN CADIZ:
Yes, your Honor.
JUSTICE BRION:
Okay. Thank you very much for that admission . . . 63 [emphasis
supplied]

To point out the obvious, the Fact-Finding Team, on the one hand, is composed
of five members from the DOJ and two members from the COMELEC. This team
is, in fact, chaired by a DOJ Assistant Secretary. Worse, the Fact-Finding
Team is under the supervision of the Secretary of DOJ and the Chairman of
the COMELEC or, in the latter's absence, a Senior Commissioner of the
COMELEC.
EDISTc

On the other hand, the Joint DOJ-COMELEC Preliminary Investigation


Committee is composed of three (3) officials coming from the DOJ and two
(2) officials from the COMELEC. Prosecutor General Claro A. Arellano from
the DOJ is also designated as Chairperson of the Committee. Not to be
forgotten also is that budget and financial support for the operation of the
Committee and the Fact-Finding Team shall be sourced from funds of the DOJ
and the COMELEC, as may be requested from the Office of the President.
This, again, is a perfect example of an incremental change that the Executive can
exploit.
What appears to be the arrangement in this case is a novel one, whereby the
COMELEC supposedly an independent Constitutional body has
been fused with the prosecutorial arm of the Executive branch in order to

conduct preliminary investigation and prosecute election offenses in the 2004 and
2007 National Elections. To my mind, this fusion or shared responsibility
between the COMELEC and the DOJ completely negates the COMELEC's
"decisional independence" so jealously guarded by the framers of
our Constitution who intended it to be insulated from any form of political
pressure.
To illustrate, Justice Presbitero J. Velasco raised during the oral arguments the
prejudicial effects (to the COMELEC's decisional independence) of the joint
supervision by the DOJ and the COMELEC over the composite Fact-Finding
Team and the Preliminary Investigation Committee, viz.:
JUSTICE VELASCO:
Counsel, would you agree that it was actually DOJ and COMELEC that
initially acted as complainant in this case?
ATTY. DULAY:
No, Your Honor, that is not our understanding, Your Honor.
JUSTICE VELASCO:
What

precipitated the creation of the Preliminary Investigating


Committee and the fact-finding team under Joint Order No. 0012011?
DCSTAH

ATTY. DULAY:
Well, if you were to take it, Your Honor, based on their Joint Circular, it
would be due to the recent discovery of new evidence and the
surfacing of new witnesses, Your Honor.
JUSTICE VELASCO:
Correct. So motu proprio, they initiated the investigation into possible
breach of election laws because of this new evidence discovered
and the surfacing of new witnesses, is that correct?
ATTY. DULAY:
Yes, Your Honor.
xxx xxx xxx

JUSTICE VELASCO:
Okay. So initially DOJ and COMELEC were the complainants in this
election matter. Now, the fact finding committee under Section
4 of Joint Order 001-2011 is under the supervision of the
Secretary of Justice and COMELEC Chairman, correct?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:
What does it mean, what does it mean if these two heads of two
powerful branches of government have supervision over the
activities of the fact-finding team? What can it do?
ATTY. DULAY:
Well, Your Honor our contention is that the merger of the powers of
the . . . an independent constitutional commission and an
executive department, the executive branch, Your Honor, is a
violation of the principle of separation of powers, Your Honor.
Because while the law may provide that each body or entity the
COMELEC or the DOJ have concurrent jurisdiction over election
offenses, this does not mean that this can be exercised jointly,
Your Honor. And what we are really objecting, Your Honor, is the
fact that when they join, it is now a . . . it constitutes a violation of
that principle of separation of powers, Your Honor.
DTaSIc

JUSTICE VELASCO:
Okay, as two branches or one department and a constitutional body
supervising the fact finding, so under the Joint Order 001-2011 it
can give instructions to the fact-finding team as to how to go
about in performing its functions under Section 4 of said
joint order, is that correct?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:

So they can issue instruction and orders to the fact-finding team in


gathering reports, conducting interviews, assessing
affidavits and the other functions of the fact-finding team,
okay?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:
And Preliminary Investigation Committee is composed of representatives
from the same, DOJ and COMELEC also, correct?
ATTY. DULAY:
Yes, Your Honor.
JUSTICE VELASCO:
Now the reports of the fact finding team are submitted also to the
Secretary of Justice and Chairman of COMELEC, is that
correct?
cSICHD

ATTY. DULAY:
Yes, under the order, Your Honor.
JUSTICE VELASCO:
Okay. So in short the investigation, the investigator actually is also the
complainant in this electoral matter? What's your view on that?
ATTY. DULAY:
Yes, Your Honor, and the judge also, Your Honor, because the same
body. That's why our contention, Your Honor, is that the factfinding team and the Preliminary Investigation Committee, is
one and the same creature, Your Honor. They are both created
by . . . jointly by the COMELEC and the DOJ.
JUSTICE VELASCO:
And the resolutions of the Preliminary Investigation Committee will have
to be submitted first to whom?

ATTY. DULAY:
If it is an election offense, Your Honor, to the COMELEC, if it is a nonelection offense to the Department of Justice, Your Honor.
JUSTICE VELASCO:
So the resolution of the criminal complaint will have to be done by
one of the agencies over which has supervision and control
over two members of the Preliminary Investigation
Committee, is that correct?
ATTY. DULAY:
Yes, Your Honor. If, your Honor please, the supervision of the
Secretary of Justice and the COMELEC Chairman refers to
the fact-finding team as well as to the Preliminary
Investigation Committee which are composed . . . it's a
composite team, really, Your Honor, as far as the fact finding
team, there's the DOJ, there's the NBI, they are the two
representatives from the COMELEC. So if we were to take the
line that they would be under the supervision of one of the other
heads, then it would be a head of an executive department
supervising the work of a representative from an
independent constitutional commission and vice versa, Your
Honor. So there is in that sense a diminution, Your Honor, of the
power and authority of the COMELEC which it should have in the
first place exercised solely or singularly in the same way that the
DOJ under its concurrent jurisdiction could have exercised
separately, Your Honor. 64[emphasis supplied]
cSTDIC

Given that the membership of the composite Fact-Finding Team and Preliminary
Investigation Committee is numerically tilted in favor of the DOJ, plus the fact
that a member of the DOJ exercises supervision over the representatives of
the COMELEC, it cannot be discounted that the latter runs the risk of being
pressured into bending their analyses of the evidence to reach results (a finding
of probable cause, in this case) more pleasing or tailor-fitted to the outcomes
desired by their DOJ supervisors who belong to the majority. In this situation, the
COMELEC's independent consideration of the facts, evidence and applicable law

with respect to the complaints for electoral sabotage filed against the
respondents cannot but be severely compromised. The following exchanges
during the oral arguments are also very instructive:
ASSOCIATE JUSTICE ABAD:
Now here, the Election Code grants the COMELEC and the other
prosecution arms of the government concurrent authority to
conduct preliminary investigation of election offenses, is that
correct?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
ASSOCIATE JUSTICE ABAD:
But your theory is that, given their concurrent authority they can conduct
preliminary investigation of election offenses.
SOLICITOR GENERAL CADIZ:
That was COMELEC and DOJ decided in this particular matter, Your
Honor.
xxx xxx xxx
ASSOCIATE JUSTICE ABAD:
No, I'm asking you if you adopt that position or not, that they concurrently
conduct a joint investigation, concurrent?
SEHTIc

SOLICITOR GENERAL CADIZ:


Yes, Your Honor.
ASSOCIATE JUSTICE ABAD:
Alright. Now, the prosecution arm of the government are under the
Secretary of Justice, do you agree?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
ASSOCIATE JUSTICE ABAD:

And the Secretary of Justice is the alter ego of the President, do you
agree?
SOLICITOR GENERAL CADIZ:
I think that is true.
ASSOCIATE JUSTICE ABAD:
The President is essentially a politician belonging to a political party, will
you agree?
SOLICITOR GENERAL CADIZ:
He is the President of the people, Your Honor.
ASSOCIATE JUSTICE ABAD:
Oh yes.

AEIHaS

xxx xxx xxx


ASSOCIATE JUSTICE ABAD:
As a matter of fact, he is also the titular President of the Liberal Party, is
that correct?
SOLICITOR GENERAL CADIZ:
Yes, but he is the President of a hundred million Filipinos.
xxx xxx xxx
ASSOCIATE JUSTICE ABAD:
Has the COMELEC which is an independent constitutional body any
business doing work assigned to it by law hand-in-hand with an
agency under the direct control of a politician?
SOLICITOR GENERAL CADIZ:
I think that's a wrong premise, Your Honor.
ASSOCIATE JUSTICE ABAD:
Explain to me. Where is the error in my premise?
xxx xxx xxx

TaCDAH

SOLICITOR GENERAL CADIZ:


Thank you very much, Your Honor. Thank you very much, thank you,
Your Honor. COMELEC and DOJ they decided to have a FactFinding Team and the Preliminary Investigating Committee. The
Fact-Finding Team is composed of COMELEC personnel, DOJ
personnel, and NBI personnel. The Preliminary Investigating
Committee is composed to COMELEC people and DOJ
personnel. Your Honor, they have, the Fact-Finding Team, made a
report, submitted it both to COMELEC, to the Secretary of Justice,
and to the Preliminary Investigating Committee. The Preliminary
Investigating Committee had a unanimous finding and they made
a report to the COMELEC En Banc. It is the COMELEC En
Banc, Your Honor, which had the final say on the findings of
Preliminary Investigating Committee. So, I think, Your Honor, the
premise is wrong, that the independent of the COMELEC has
been compromised in this particular matter because, in fact, the
COMELECEn Banc, Your Honor did not adopt in toto the findings
of the Preliminary Investigating Committee. And Your Honor, there
is a dimension here that not only election offenses are being
investigated but also common crimes under the Revised Penal
Code. So, in the collaboration between DOJ and the COMELEC,
what was sought to be made, or what was sought to be achieved
was efficiency, and what was sought to be avoided was
redundancy, Your Honor. And again, if I may reiterate, Your Honor
please, to your question about compromising the independence of
the COMELEC, I respectfully beg to disagree with that premise,
Your Honor, because at the end of the day it was the
COMELEC En Banc who decided to file an Information or to have
a Resolution asking the Law Department to file an information
against the three (3) accused in this case Gloria MacapagalArroyo, Lintang Bedol, and former Governor Zaldy Ampatuan, Sr.
ASSOCIATE JUSTICE ABAD:
Acting on the findings of a Committee
representatives of the DOJ, is that correct?
SOLICITOR GENERAL CADIZ:

dominated

by

There was a unanimity, Your Honor.


ASSOCIATE JUSTICE ABAD:
Yes, yes. Well, the Committee dominated . . . .
SOLICITOR GENERAL CADIZ:
I think the numbers are . . . . .
ASSOCIATE JUSTICE ABAD:
3-2.
SOLICITOR GENERAL CADIZ:
3-2?

EHCaDS

ASSOCIATE JUSTICE ABAD:


Yes.
SOLICITOR GENERAL CADIZ:
There was no dissention, there was a unanimity in finding and at the end
of the day there were only recommendatory to the COMELEC En
Banc.
ASSOCIATE JUSTICE ABAD:
Well, that is true but the COMELEC did not make an investigation. It
was not the one that denied the respondents the right to ask
for time to file counter-affidavit. These rulings were made by
that Committee dominated by representatives of the
DOJ. Anyway, you just answered it, although not exactly to my
satisfaction but you answered it. Do you know if under
the Election Code, tell me if I'm exceeded my time already, do you
know if under the Election Code, the COMELEC must directly
conduct the preliminary investigation of election offenses? Does it
have to conduct directly by itself preliminary investigation of
election offenses, the COMELEC?
SOLICITOR GENERAL CADIZ:
The Law Department can do that, Your Honor.

STaAcC

ASSOCIATE JUSTICE ABAD:


Well, so I will read to you Section 43 of Republic Act 9369, it says that,
and I quote, "That the COMELEC shall, through it's duly
authorized legal officers, have the power concurrent with the
other prosecuting arms of the government, to conduct
preliminary investigation of all election offenses." Now, since
the law specifically provides that the COMELEC is to exercise its
power to conduct preliminary investigation through its legal
officers, by what authority did the COMELEC delegate that power
to a joint committee dominated by strangers to its organization?
SOLICITOR GENERAL CADIZ:
Your Honor, the power of the COMELEC to investigate and prosecute
election related offenses is not exclusive. It is concurrent with
prosecuting arms of the government, that is the Department of
Justice. In other words, Your Honor, the Department of Justice
under the amended law has the power to investigate and
prosecute election related offenses likewise, so there was no
undue delegation as premises in your question, Your Honor, but
this is a concurrent jurisdiction with the DOJ.
ASSOCIATE JUSTICE ABAD:
So, that's what made the COMELEC disregard what the law says, "shall"
which is, as you say, you know in law "shall" means a command,
"Shall, through its duly authorized legal officers, have the power to
conduct preliminary investigation of all election offenses." At any
rate, I think, you've have answered.
SOLICITOR GENERAL CADIZ:
It is not exclusive, Your Honor.
ASSOCIATE JUSTICE ABAD:
You've given your answer.
SOLICITOR GENERAL CADIZ:
It is not exclusive, Your Honor, the law states its power.

ASSOCIATE JUSTICE ABAD:


No, the method is exclusive. The power to investigate is not exclusive,
if the law expressly says "through its fully authorized legal officers"
precisely because this is inconsonance with the policy laid
down by the Constitution that the COMELEC shall enjoy
autonomy, independent of any branch of government. It
should not be working with the political branch of the
government to conduct its investigation. It should try to
maintain its independence. At any rate, I understand that . . .
Can I continue Chief? 65 [emphasis supplied]
TcSHaD

Considering the terms of the COMELEC-DOJ resolutions and exchanges and


admissions from no less than the Solicitor General, the resulting arrangement
involving as it does a joint or shared responsibility between the DOJ and
the COMELEC cannot but be an arrangement that the Constitution and
the law cannot allow, however practical the arrangement may be from the
standpoint of efficiency. To put it bluntly, the joint or shared arrangement
directly goes against the rationale that justifies the grant of independence to the
COMELEC to insulate it, particularly its role in the country's electoral exercise,
from political pressures and partisan politics.
As a qualification to the above views, I acknowledge as the Court did
in People v. Hon. Basilla 66 that "the prompt and fair investigation and
prosecution of election offenses committed before or in the course of nationwide
elections would simply not be possible without the assistance of provincial and
city fiscals and their assistants and staff members, and of the state prosecutors of
the [DOJ]." 67 That the practice of delegation of authority by the
COMELEC, otherwise known as deputation, has long been upheld by this Court
is not without significance, as it is the only means by which its
constitutionally guaranteed independence can remain unfettered.
In other words, the only arrangement constitutionally possible, given the
independence of the COMELEC and despite Section 42 of RA 9369, is for the
DOJ to be a mere deputy or delegate of the COMELEC and not a co-equal
partner in the investigation and prosecution of election offenses
WHENEVER THE COMELEC ITSELF DIRECTLY ACTS. While the COMELEC

and the DOJ have equal jurisdiction to investigate and prosecute election
offenses (subject to the rule that the body or agency that first takes cognizance of
the complaint shall exercise jurisdiction to the exclusion of the others), 68 the
COMELEC whenever it directly acts in the fact-finding and preliminary
investigation of elections offences can still work with the DOJ and seek its
assistance without violating its constitutionally guaranteed independence, but it
can only do so as the principal in a principal-delegate relationship with the
DOJ where the latter acts as the delegate.
cAEaSC

This arrangement preserves the COMELEC's independence as "being mere


deputies or agents of the COMELEC, provincial or city prosecutors deputized . . .
are expected to act in accord with and not contrary to or in derogation of its
resolutions, directives or orders . . . in relation to election cases that such
prosecutors are deputized to investigate and prosecute. Being mere deputies,
provincial and city prosecutors, acting on behalf of the COMELEC, [shall also]
proceed within the lawful scope of their delegated authority." 69
III. The Consequences of Unconstitutionality
In the usual course, the unconstitutionality of the process undertaken in
conducting the preliminary investigation would result in its nullity and the absence
of the necessary preliminary investigation that a criminal information requires.
Three important considerations taken together, however, frustrate the petitioners'
bid to achieve this result so that the petitions ultimately have to be dismissed.
First, separate from the COMELEC's decisional independence, it also has the
attribute of institutional independence, rendered necessary by its key role in
safeguarding our electoral processes; the Constitution's general grant of
independence entitles it not only to the discretion to act as its own wisdom may
dictate, butthe independence to act on its own separately and without
interference from the other branches of the government.
Thus, these other branches of government, including the Judiciary, cannot
interfere with COMELEC decisions made in the performance of its duties, save
only if the COMELEC abuses the exercise of its discretion 70 a very high
threshold of review from the Court's point of view. Any such review must start
from the premise that the COMELEC is an independent body whose official

actions carry the presumption of legality, and any doubt on whether the
COMELEC acted within its constitutionally allowable sphere should be
resolved in its favor.
In the context of the present case, the petitioners' allegations and evidence on
the infirmity of the COMELEC's determination of probable cause should clearly
be established; where the petitioners' case does not rise above the level of doubt
as in this case the petition should fail.
IESTcD

Second and taking off from where the first above consideration ended, Section 2
of Joint Order No. 001-2011 grants the COMELEC the final say in determining
whether probable cause exists. Section 2 reads:
Section 2. Mandate. The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team create and referred to
in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and
other election laws shall be approved by the COMELEC in accordance
with the COMELEC Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the
appropriate courts.

While the fact-finding and the preliminary investigation stages, as envisioned in


the various COMELEC-DOJ instruments, may have resulted in a constitutionally
impermissible arrangement between the COMELEC and the DOJ, Section 2 of
Joint Order No. 001-2011 shows that it is the COMELEC that must still solely act
and its actions can be constitutionally valid if made in a process that is free from
any attendant participation by the Executive.
From the petitioners' perspective, while the disputed resolutions involved a factfinding and a preliminary investigation phases that are constitutionally
objectionable,the petitioners still have to show that indeed the COMELEC
had left the matter of determining probable cause ultimately to the FactFinding Team and the Joint Committee. It is on this point that the petitioners'
case is sadly deficient. In contrast with this deficiency, the records show that the

COMELEC did indeed meet, on its own, to determine probable cause based on
the evidence presented by its own representatives.
Third, since the corresponding informations have already been filed in
court, claims of absence of, or irregularity in, the preliminary investigation are
matters which appropriately pertain to the lower court in the exercise of its
jurisdiction. 71 After the lower court has effectively assumed jurisdiction, what is
left for this Court to act upon is solely the issue of the constitutionality of the
creation and operation of the Fact-Finding Team and the Joint Committee for
being violative of the COMELEC's independence. Other constitutional issues
(equal protection, due process, and separation of powers) simply arose as
incidents of the shared COMELEC-DOJ efforts, and need not be discussed after
the determination of the unconstitutionality of the shared COMELEC-DOJ
arrangements for violation of the COMELEC's independence.
In sum, while the DOJ-COMELEC arrangements compromised the COMELEC's
independence, the filing of the informations in court, upon the COMELEC's own
determination of probable cause, effectively limited not only the prosecution's
discretion (for example, on whether to proceed or not), but also the Court's
jurisdiction to pass upon the entire plaint of the petitioners. Crespo v. Judge
Mogul 72 teaches us that
SCEDAI

The filing of a complaint or information in Court initiates a criminal


action. The Court thereby acquires jurisdiction over the case, which
is the authority to hear and determine the case. . . . .
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and
sole judge on what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence.
[emphases ours, citations omitted]

To reiterate, except for the resolution of the issue of the constitutionality of


creating a Joint Committee and a Fact-Finding Team and of the incidental
issues bearing on this constitutional interpretation matters which only this
Court may authoritatively determine 73 this Court should now refrain from
making any pronouncement relative to the disposition of the criminal cases
now before the lower court.
Based on these considerations particularly, on the lack of a factual showing
that the COMELEC did not determine the existence of probable cause by itself
and relied solely on its unconstitutional arrangements with the DOJ I support
the dismissal of the petitions save for the ruling that the shared COMELECDOJ investigatory and prosecutory arrangements, as envisioned in the
disputed resolutions, are unconstitutional.
Lest this opinion be misconstrued and for greater emphasis, while I ultimately
sustain the COMELEC's finding of probable cause based on the collective
considerations stated above, the constitutionally objectionable arrangement of a
shared responsibility between the COMELEC and the DOJ was not necessarily
saved by the existence of Section 2 of Joint Order No. 001-2011. I sustain the
COMELEC's finding of probable cause under the unique facts and developments
in this case, based on the institutional independence the COMELEC is entitled to;
the lack of proof that the COMELEC did not act independently; and the adduced
fact that the COMELEC did indeed meet to consider the findings presented to it
by its representatives. I make this conclusion without prejudice to proof of other
facts that, although bearing on the COMELEC's independence but are not here
decided, may yet be submitted by the petitioners before the trial court if they are
appropriate for that court's consideration on the issues properly raised.
DTIaCS

For greater certainty for the COMELEC in its future actions in enforcing and
administering election-related laws, let me advise that what I highlighted
regarding the nature and breadth of the constitutionally guaranteed
independence of the COMELEC should always be seriously considered as
guiding lights.
For the Court en banc's consideration.
CARPIO, J., concurring and dissenting:

I concur with the ponencia in its conclusion that (1) there is no violation of the
Due Process and Equal Protection Clause in the creation, composition, and
proceedings of the Joint Department of Justice (DOJ) Commission on
Elections (COMELEC) Preliminary Investigation Committee (Committee) and the
Fact-Finding Team; (2) petitioner Gloria Macapagal-Arroyo (Macapagal-Arroyo) in
G.R. No. 199118 was not denied opportunity to be heard in the course of the
Committee's preliminary investigation proceedings; and (3) the preliminary
investigation against petitioners, which followed Rule 112 of the Rules on
Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure, is valid.
Petitioners' attack against the impartiality of the Committee and the Fact-Finding
Team because of their composition and source of funding is negated by (1) the
express statutory authority for the DOJ and the COMELEC to
conduct concurrently preliminary investigations on election-related offenses, (2)
the separate funding for the Committee and Fact-Finding Team's personnel, and
(3) the failure of petitioners to rebut the presumption of regularity in the
performance of official functions. Similarly, the equal protection attack against
Joint Order 001-2011 for its alleged under inclusivity fails as jurisprudence is
clear that under inclusivity of classification, by itself, does not offend the Equal
Protection Clause. 1
Nor is there merit in petitioner Macapagal-Arroyo's claim that the Committee's
denial of her request for time to file her counter-affidavit and for copies of
documents relating to the complaint of Aquilino Pimentel III (Pimentel) and the
Fact-Finding's partial investigation report robbed her of opportunity to be heard.
Petitioner Macapagal-Arroyo was furnished with all the documents the Committee
had in its possession. Further, the documents relating to Pimentel's
complaint, 2 all based on an election protest he filed with the Senate Electoral
Tribunal, 3 are not indispensable for petitioner Macapagal-Arroyo to prepare her
counter-affidavit to answer the charge that she acted as principal by conspiracy,
not by direct participation, to commit electoral sabotage in Maguindanao in the
2007 elections.
aCHcIE

I am, however, unable to join the ponencia in its conclusion that the rules of
procedure adopted by the Committee (Committee Rules) must be published.

Section 7 of the Joint Order provides that the "Committee shall meet and craft its
rules of procedure as may be complementary to the respective rules of DOJ
and COMELEC . . . ." Section 2 of the Committee Rules provides that the
"preliminary investigation shall be conducted in the following manner as may be
complementaryto Rule 112 of the Rules on Criminal Procedure and Rule 34 of
the COMELEC Rules of Procedure." This means that the Committee Rules will
apply only if they complement Rule 112 or Rule 34. If the Committee Rules do
not complement Rule 112 or Rule 34 because the Committee Rules conflict with
Rule 112 or Rule 34, the Committee Rules will not apply and what will apply will
either be Rule 112 or Rule 34. Clearly, the Committee Rules do not amend or
revoke Rule 112 or Rule 34, butonly complement Rule 112 or Rule 34 if
possible. "Complementary" means an addition so as to complete or
perfect. 4 The Committee Rules apply only to the extent that they "may be
complementary to" Rule 112 or Rule 34. In short, despite the adoption of the
Committee Rules, Rule 112 of the Rules on Criminal Procedure and Rule 34 of
the COMELEC Rules of Procedure indisputably remain in full force and effect.
Assuming, for the sake of argument, that the Committee Rules amend Rule 112
and Rule 34, the lack of publication of the Committee Rules renders them void,
as correctly claimed by petitioners. In such a case, Rule 112 and Rule 34 remain
in full force and effect unaffected by the void Committee Rules. The preliminary
investigation in the present case was conducted in accordance with Rule 112 and
Rule 34. Petitioners do not claim that any of their rights under Rule 112 or Rule
34 was violated because of the adoption of the Committee Rules. In short,
petitioners cannot impugn the validity of the preliminary investigation because of
the adoption of the Committee Rules, whether the adoption was void or not.
As shown in the matrix drawn by public respondents in their Comment, 5 of the
ten paragraphs in Section 2 (Procedure) of the Committee Rules, only
one paragraph is not found in Rule 112 of the Rules on Criminal Procedure and
this relates to an internal procedure on the treatment of referrals by other
government
agencies
or
the
Fact-Finding
Team
to
the
Committee. 6 In Honasan II v. Panel of Prosecutors of the DOJ, 7 the Court
quoted and adopted the following argument of the Ombudsman:

OMB-DOJ Joint Circular No. 95-001 is merely an internal


circular between the DOJ and the Office of the Ombudsman, outlining
authority and responsibilities among prosecutors of the DOJ and of the
Office of the Ombudsman in the conduct of preliminary
investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT
regulate the conduct of persons or the public, in general.
CEIHcT

Accordingly, there is no merit to petitioner's submission that OMB-DOJ


Joint Circular No. 95-001 has to be published. (Emphasis supplied)

In addition, Section 3 of the Committee Rules (Resolution of the Committee) is a


substantial reproduction of the first paragraph of Section 4 of Rule 112, save for
language replacing "investigating prosecutor" with "Committee." Section 4 of the
Committee Rules (Approval of Resolution), while not appearing in Rule 112, is
aninternal automatic review mechanism (for the COMELEC en banc to review
the Committee's findings) not affecting petitioners' rights. 8 Thus, save for
ancillary internal rules, the Committee Rules merely reiterate the procedure
embodied in Rule 112.
Nevertheless, the ponencia finds publication (and filing of the Committee Rules
with the U.P. Law Center) 9 "necessary" because three provisions of the
Committee Rules "either restrict the rights or provide remedies to the affected
parties," namely:
(1) Section 1 [which] provides that "the Joint Committee will no longer
entertain complaints from the public as soon as the Fact-Finding Team
submits its final Report, except for such complaints involving offenses
mentioned in the Fact-Finding Team's Final Report"; (2) Section 2
[which] states that the "Joint Committee shall not entertain a Motion to
Dismiss"; and (3) Section 5 [which] provides that a Motion for
Reconsideration may be availed of by the aggrieved parties against the
Joint Committee's Resolution. 10

None of these provisions justify placing the Committee Rules within the ambit
of Taada v. Tuvera. 11
Section 1 of the Committee Rules allows the Committee, after the submission by
the Fact-Finding Team of its Final Report, to entertain complaints mentioned in
the Final Report and disallows the Committee to entertain complaints unrelated

to the offenses mentioned in the Final Report. This is still part of the fact-finding
stage and the Committee has the discretion to require the Fact-Finding Team to
take into account new complaints relating to offenses mentioned in the Final
Report. At this stage, there is still no preliminary investigation. Section 1
refers solely to the fact-finding stage, not the preliminary investigation. Thus,
Section 1 cannot in any way amend, revoke or even clarify Rule 112 or Rule 34
which governs the preliminary investigation and not the fact-finding stage.
Section 1 is merely an internal rule governing the fact-finding stage. To repeat,
Section 1 does not have the force and effect of law that affects and binds the
public in relation to the preliminary investigation. In short, there is no need to
publish Section 1 because it deals solely with fact-finding, not with the preliminary
investigation.
In barring acceptance of new complaints after the submission of the Fact-Finding
Team's Final Report to the Committee, save for complaints on offenses covered
in the Final Report, Section 1 merely states a commonsensical rule founded on
logic. If the Final Report is with the Committee, it makes no sense to re-open the
investigation for the Fact-Finding Team to investigate offenses wholly unrelated
to the Final Report. For such new offenses, the Fact-Finding Team will have to
open a new investigation. On the other hand, it makes eminent sense for the
Fact-Finding Team to re-open investigation (and thus revise its Final Report) if
the new complaints "involv[e] offenses mentioned in the Fact-Finding Team's
Final Report," allowing the Fact-Finding Team to submit as thorough and
comprehensive a Report as possible on the offenses subject of the Final Report.
Far from "restrict[ing] the rights" of the "affected parties," Section 1 favors the
petitioners by letting the Fact-Finding Team parse as much evidence available,
some of which may be exculpatory, even after the Final Report has been
submitted to the Committee, provided they relate to offenses subject of the Final
Report.
On Section 2 and Section 5 of the Committee Rules, these provisions merely
reiterate extant rules found in the Rules of Court and relevant administrative
rules, duly published and filed with the U.P. Law Center. Thus, Section 2's
proscription against the filing of a motion to dismiss is already provided in Section
3 (c) of Rule 112 which states that "[t]he respondent shall not be allowed to file a

motion to dismiss in lieu of a counter-affidavit." 12 Similarly, the right to seek


reconsideration from an adverse Committee Resolution under Section 5, again
favoring petitioners, has long been recognized and practiced in the preliminary
investigations undertaken by the DOJ. 13DOJ Order No. 223, dated 1 August
1993, as amended by DOJ Department Circular No. 70, dated 1 September
2000, grants to the aggrieved party the right to file "one motion for
reconsideration" and reckons the period for the filing of appeal to the DOJ
Secretary from the receipt of the order denying reconsideration. 14
Taada v. Tuvera requires publication of administrative rules that have the force
and effect of law and the Revised Administrative Code requires the filing of such
rules with the U.P. Law Center as facets of the constitutional guarantee of
procedural due process, to prevent surprise and prejudice to the public who are
legally presumed to know the law. 15 As the Committee Rules merely
complement and even reiterate Rule 112 of the Rules on Criminal Procedure, I do
not see how their non-publication and non-filing caused surprise or prejudice to
petitioners. Petitioners' claim of denial of due process would carry persuasive
weight if the Committee Rules amended, superseded or revoked existing
applicable procedural rules or contained original rules found nowhere in the
corpus of procedural rules of the COMELEC or in the Rules of Court, rendering
publication and filing imperative. 16 Significantly, petitioner Macapagal-Arroyo
encountered no trouble in availing of Rule 112 to file a motion with the Committee
praying for several reliefs. 17
Lastly, the complementary nature of the Committee Rules necessarily means that
the proceedings of the Committee would have continued and no prejudice would
have been caused to petitioners even if the Committee Rules were non-existent.
The procedure provided in Rule 112 of the Rules on Criminal Procedure and Rule
34 of the COMELEC Rules of Procedure would have ipso facto applied since the
Committee Rules merely reiterate Rule 112 and Rule 34. The ponencia concedes
as much when it refused to invalidate the Committee's proceedings, observing
that "the preliminary investigation was conducted by the Joint Committee
pursuant to the procedures laid down in Rule 112 of the Rules on Criminal
Procedure and the 1993 COMELEC Rules of Procedure." 18
Accordingly, I vote to DISMISS the petitions.

MENDOZA, J., concurring:


I am in agreement with the ponencia that the arraignment of petitioner Gloria
Macapagal Arroyo (GMA), on her very own motion, is tantamount to her
submission to the jurisdiction of the trial court. The entry of her plea of not guilty
to the crime of electoral sabotage can only be deemed as a waiver of her right to
question the alleged irregularities committed during the preliminary investigation
conducted by the Joint DOJ-COMELEC Preliminary Investigation Committee,
headed by the Prosecutor General (Joint Committee) and/or Comelec.
Consequently, her own actions rendered the issues on probable cause and on
the validity of the preliminary investigation as moot and academic.
This mootness, however, does not impinge on the issue of the constitutionality of
the Comelec's "sharing" of its jurisdiction with another body, for this is an entirely
different matter resting on a sundry of arguments involving not just the rules on
criminal procedure, but the Constitution itself. Nevertheless, this very issue has
been rendered likewise moot when the Comelec En Banc itself ruled that there
was probable cause.
At any rate, in this separate opinion, I shall only dwell on the subject of due
process. I find it proper to put on record my views in relation to the rights afforded
a respondent in preparation of his defense during a preliminary
investigation, specially considering the gravity of the offense charged. Had this
case been resolved prior to the arraignment of GMA, I would have voted for a
remand of the case to the Comelec, not the Joint Committee, to enable the
petitioner to submit her counter-affidavit, if only to set things right before the trial
court could properly act on the case. Although moot because of petitioner's
arraignment and valid entry of plea, I am of the view that there was undue
haste in the conduct of the preliminary investigation in violation of her right to due
process.
HACaSc

The purpose of a preliminary investigation is the appropriate guidepost in this


issue. The proceeding involves the reception of evidence showing that, more
likely than not, a respondent could have committed the offense charged and,
thus, should be held for trial. This underlines the State's right to prosecute the
persons responsible and jumpstart the grinding of the wheels of justice. But the

same is by no means absolute and does not in any manner grant the
investigating officer the license to deprive a respondent of his rights.
The office of a prosecutor does not involve an automatic function to hold persons
charged with a crime for trial. Taking the cudgels for justice on behalf of the State
is not tantamount to a mechanical act of prosecuting persons and bringing them
within the jurisdiction of court. Prosecutors are bound to a concomitant
duty not to prosecute when after investigation they have become convinced that
the evidence available is not enough to establish probable cause. This is why, in
order to arrive at a conclusion, the prosecutors must be able to make an objective
assessment of the conflicting versions brought before them, affording both
parties to prove their respective positions. Hence, the fiscal is not bound to
accept the opinion of the complainant in a criminal case as to whether or not
a prima facie case exists. Vested with authority and discretion to determine
whether there is sufficient evidence to justify the filing of a corresponding
information and having control of the prosecution of a criminal case, the fiscal
cannot be subjected to dictation from the offended party 1 or any other party for
that matter. Emphatically, the right to the oft-repeated preliminary investigation
has been intended to protect the accused from hasty, malicious and oppressive
prosecution. 2 In fact, the right to this proceeding, absent an express provision of
law, cannot be denied. Its omission is a grave irregularity which nullifies the
proceedings because it runs counter to the right to due process enshrined in the
Bill of Rights. 3
Although a preliminary investigation is not a trial and is not intended to usurp the
function of the trial court, it is not a casual affair. 4 The right to a preliminary
investigation is not a mere formal or technical right but a substantive one, forming
part of due process in criminal justice. 5 The prosecutor conducting the same
investigates or inquires into the facts concerning the commission of a crime to
determine whether or not an Information should be filed against a respondent. A
preliminary investigation is in effect a realistic appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced so that when the
case is tried, the trial court may not be bound, as a matter of law, to order an
acquittal. 6 A preliminary investigation has been called a judicial inquiry; it is a
judicial proceeding. An act becomes a judicial proceeding when there is an

opportunity to be heard and for the production of, and weighing of, evidence, and
a decision is rendered thereon. 7
Granting that the formation of the Joint Committee was valid, as applied to this
case, the petitioner should have been given ample opportunity to prepare her
defense by allowing her to examine documents purportedly showing the
circumstance of how the offense charged was committed. The outright denial of
petitioner's OmnibusMotion Ad Cautelam, praying that she be furnished with
copies of pertinent documents and, at the same time, requesting for an extension
of time to file her counter-affidavit, was nothing less of a violation of her right to
due process. I cannot discount the fact that the cases were submitted for
resolution without her affidavit and those of the other petitioners. Others may
perceive these requests as dilatory tactics which might unduly delay the progress
of the investigation, but I cannot share this conviction for being unfounded and
speculative. It cannot be gainsaid that the right to file a counter-affidavit in a
preliminary investigation is a crucial facet of due process. That right is
guaranteed under the due process clause. This not only protects a respondent
from the vast government machinery under the powers of which he is subdued,
but more importantly, it also provides the prosecutor the opportunity to arrive at a
fair and unprejudiced conclusion of the case.
The petitioner did not forfeit her right to submit her counter-affidavit when she
insisted to be furnished with documents referred to in the complaint. In the normal
course of things, this insistence is a naturally expected reaction to the situation.
It is likewise important to note that in his complaint, Senator Pimentel adopted all
the affidavits attached to the Fact-Finding Team's Initial Report, which he claimed
were unavailable to him. The reference to documents in a complaint, whether
attached thereto or not, can influence the mind of the prosecutor. These
documents were cited in the complaint precisely to convince the prosecutor of the
guilt of petitioner. As far as my logical mind can comprehend, I think it is nothing
short of fairness to give the petitioner to opportunity to persuade the prosecutor
otherwise. This chance can only be realized by giving her the opportunity to
examine the documents and to submit her counter-affidavit.
IDESTH

Granting arguendo that GMA is not entitled to the adopted but unattached
documents, this does not entail the automatic action of the Joint Committee to
proceed and rule on probable cause sans the counter-affidavit. Whether or not
the unfurnished documents were relevant in the line of defense to be relied on by
petitioner, the Joint Committee, in all prudence expected from a body of
esteemed membership, should have given the petitioner reasonable time to
submit her counter-affidavit after the denial of her Omnibus Motion Ad Cautelam.
Lamentably, the eagerness to file the complaint in court, at the soonest possible
time, prevailed over this path of caution.
Since a preliminary investigation is designed to screen cases for trial, only
evidence presented must be considered. While even raw information may justify
the initiation of an investigation, the stage of preliminary investigation can be held
only after sufficient evidence has been gathered and evaluated warranting the
eventual prosecution of the case in court. 8 The fact that evidentiary issues can
be better threshed out during the trial cannot justify deprivation of a respondent's
right to refute allegations thrown at him during the preliminary investigation.
Neither will an extension of a few days to enable him to submit his counteraffidavit mock the constitutional right to speedy disposition of cases because the
very reason for granting such extension holds greater significance than the latter
right.
Next, although the Comelec's vital function of guarding the people's right to
suffrage is recognized by the Court, I cannot carelessly shun the chronology of
events which preceded the filing of this case.
From the denial of petitioner's Omnibus Motion Ad Cautelam on November 15,
2011, it took the Joint Committee only a day or on November 16, 2011, to issue a
Joint Resolution recommending the filing of Information against the
respondents. 9 The said issuance was later indorsed to the Comelec, which
hastily stamped its imprimatur on it two days after, or on the morning of
November 18, 2011, despite the voluminous record. In the Comelec proceeding
that morning of November 18, 2011, one Commissioner took no part in the vote
because he could not decide on the merits of the case as he had yet to read in
full the resolution of the Joint Committee.
AIcECS

Wasting no time, on the same day, at 11:22 o'clock in the morning, the Comelec's
Law Department filed an Information with the RTC Pasay City. The trial court,
after a few hours from receipt of the Information, proceeded to issue the warrant
of arrest.
Due process demands that the Comelec should have given the petitioner the
opportunity to submit her counter-affidavit. And if its resolution would be adverse,
as was the case, she should have been given time to file a motion for
reconsideration before the Comelec. True, under Rule 13 of the Comelec Rules
of Procedure, a motion for reconsideration of an en banc ruling, resolution, order
or decision is generally proscribed. In "election offenses cases," 10 however, such
motions are allowed.
This display of alacrity, at the very least, caused nagging thoughts in my mind
considering that allegations of bias and partiality on the part of the Chairman of
the Comelec 11 have plagued this issue way before it had come to a conclusion.
Stripped-off of the media-mileage received by this case, rest evades my mind at
the thought of how the situation was handled. True, "speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be attributed to
injudicious performance of functions." 12 When other factors, however, are taken
into account, like claims of failure to review records by a commissioner due to the
very short time given due to the conduct of the proceedings in whirlwind fashion,
this swiftness garners a negative nuance that unfortunately affects the neutral
facade which a judicial and quasi-judicial body must maintain. This earns my
reluctance to fully concur with the ponencia.
Lest it be misunderstood, this separate position is not a brief for the petitioner,
whose fate is up for the trial court to decide. Rather it is a statement on my belief
that the Bill of Rights enshrined in our Constitution, particularly the right to due
process, 13 should be held sacred and inviolable.
|||

(Arroyo v. Department of Justice, G.R. No. 199082, 199085, 199118,

[September 18, 2012], 695 PHIL 302-429)

[G.R. No. 176033. March 11, 2015.]


FELILIBETH
AGUINALDO
and
BENJAMIN
PEREZ, petitioners, vs. REYNALDO P. VENTUS and JOJO B.
JOSON, respondents.
DECISION
PERALTA, J :
p

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, seeking to nullify and set aside the Decision 1 dated August 11, 2006 of
the Court of Appeals (CA) and its December 4, 2006 Resolution 2 in CA-G.R. SP
No. 92094. The CA dismissed for lack of merit the Petition for Certiorari under
Rule 65 filed by petitioners Felilibeth Aguinaldo and Benjamin Perez, praying for
the following reliefs: (1) the issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order to enjoin the public respondent Judge Felixberto T.
Olalia from implementing the Orders dated May 16, 2005 and August 23, 2005;
(2) the issuance of a Writ ofCertiorari to annul the said Orders, and (3) the
dismissal of the estafa case against them for having been prematurely filed and
for lack of cause of action.
The procedural antecedents are as follows:
On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B.
Joson filed a Complaint-Affidavit 3 for estafa against petitioners Aguinaldo and
Perez before the Office of the City Prosecutor (OCP) of Manila. Claiming to be
business partners in financing casino players, private respondents alleged that
sometime in March and April 2002, petitioners connived in convincing them to
part with their Two Hundred Sixty Thousand (P260,000.00) Pesos in
consideration of a pledge of two motor vehicles which the latter had
misrepresented to be owned by Aguinaldo, but turned out to be owned by one
Levita De Castro, manager/operator of LEDC Rent-A-Car.

On January 15, 2003, Perez filed his Counter-Affidavit, 4 denying the accusation
against him, and claiming that his only participation in the transaction between
private respondents and Aguinaldo was limited to having initially introduced them
to each other.
On January 22, 2003, private respondents filed their Reply-Affidavit, 5 asserting
that Perez was the one who showed them photocopies of the registration paper
of the motor vehicles in the name of Aguinaldo, as well as the one who personally
took them out from the rent-a-car company.
On January 29, 2003, Perez filed his Rejoinder-Affidavit, 6 stating that neither
original nor photocopies of the registration was required by private respondents to
be submitted to them because from the very start, they were informed by
Aguinaldo that she merely leased the vehicles from LEDC Rent-a-Car.
On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga
issued a Resolution 7 recommending both petitioners to be indicted in court for
estafa under Article 315, paragraph (2) of the Revised Penal Code (RPC). He
also noted that Aguinaldo failed to appear and to submit any controverting
evidence despite the subpoena.
On July 16, 2003, an Information 8 (I.S. No. 02L-51569) charging petitioners with
the crime of estafa under Article 315, paragraph 2 (a) of the RPC was filed with
the Regional Trial Court of Manila. Docketed as Criminal Case No. 03-216182,
entitled "People of the Philippines v. Felilibeth Aguinaldo and Benjamin
Perez," the case was raffled to the public respondent.
On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for Reduction
of Bail to be Posted in Cash, which the public respondent granted in an Order of
even date. 9
TIHCcA

On the same day, petitioners filed through counsel a Very Urgent Motion to Recall
or Quash Warrants of Arrest, 10 alleging that the Resolution dated February 25,
2003 has not yet attained finality, and that they intended to file a motion for
reconsideration.
On August 4, 2003, petitioners jointly filed with the OCP of Manila their "Motion
for Reconsideration and Motion for the Withdrawal of the Information Prematurely

Filed with the Regional Trial Court, Branch 8, City of Manila." 11 Citing the
Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo asserted, among
others, that no deceit or false pretenses was committed because private
respondents were fully aware that she does not own the pledged motor vehicles.
On August 6, 2003, the public respondent issued an Order 12 granting the motion
for withdrawal of information, and directing the recall of the arrest warrant only
insofar as Aguinaldo was concerned, pending resolution of her motion for
reconsideration with the OCP.
On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of
Arraignment, pending resolution of their motion for reconsideration filed with the
OCP of Manila. Upon the prosecution's motion, 13 the public respondent ordered
the proceedings to be deferred until the resolution of petitioners' motion for
reconsideration.14
On December 23, 2003, the public respondent ordered the case archived
pending resolution of petitioners' motion for reconsideration with the OCP of
Manila. 15
On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a
Motion to Set Case for Trial, 16 considering that petitioners' motions for
reconsideration and for withdrawal of the information have already been denied
for lack of merit.
On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a
petition for review 17 in I.S. No. 02L-51569 for estafa, entitled "Benjamin Perez
and Felilibeth Aguinaldo v. Reynaldo P. Ventus and Jojo B. Joson."
Acting on the prosecution's recommendation for the denial of petitioners' motions
for reconsideration and withdrawal of the information, and its motion to set the
case for trial, the public respondent issued an Order 18 dated March 15, 2004
directing the issuance of a warrant of arrest against Aguinaldo and the setting of
the case for arraignment.
On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and
Suspend Further Proceedings, 19 until their petition for review before the DOJ is

resolved with finality. Petitioners reiterated the same prayer in their Urgent Motion
for Reconsideration 20 of the Order dated March 15, 2004.
On April 16, 2004, the public respondent granted petitioners' urgent motion to
cancel arraignment and suspend proceedings, and motion for reconsideration. 21
On June 23, 2004, Levita De Castro, through the Law Firm of Lapea and
Associates, filed a Motion to Reinstate Case and to Issue Warrant of
Arrest. 22 De Castro alleged that she was the private complainant in the estafa
case that had been ordered archived. Petitioners filed an Opposition with Motion
to Expunge, 23 alleging that De Castro is not a party to the said case, which is in
active file, awaiting the resolution of their petition for review before the DOJ.
On October 15, 2004, De Castro filed a Manifestation 24 informing the public
respondent that the DOJ had already promulgated a Resolution dated September
6, 2004 denying petitioners' petition for review in I.S. Nos. 02G-29349 & 02G28820 for estafa, entitled "Levita De Castro v. Felilibeth Aguinaldo." 25
On May 16, 2005, the public respondent issued an Order granting the Motion to
Reinstate Case and to Issue Warrant of Arrest, thus:
Pending with this Court are (1) Motion to Reinstate Case and to Issue
Warrant of Arrest against accused Aguinaldo filed by private prosecutor
with conformity of the public prosecutor. . . .
It appears from the records that:
(1) the warrant of arrest issued against accused Aguinaldo was
recalled pending resolution of the Petition for Review filed with the
DOJ; . . .
(2) the Petition for Review was subsequently dismissed . . .
(3) accused Aguinaldo has not yet posted bail bond.

aSIHcT

In view of the foregoing, (the) Motion to Reinstate Case and to Issue


Warrant of Arrest is GRANTED. Let this case be REINSTATED and let
warrant of arrest be issued against accused Aguinaldo.
xxx xxx xxx
SO ORDERED. 26

On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to
Quash Warrant of Arrest. 27
On August 23, 2005, the public respondent issued an Order denying petitioners'
Motion for Reconsideration with Motion to Quash Warrant of Arrest, and setting
petitioners' arraignment, as the Revised Rules on Criminal Procedure (or Rules
of Court) allows only a 60-day period of suspension of arraignment.
Citing Crespo v. Mogul, 28 he also ruled that the issuance of the warrant of arrest
is best left to the discretion of the trial court. He also noted that records do not
show that the DOJ has resolved the petition for review, although photocopies
were presented by De Castro.
Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of
the Rules of Court, attributing grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent in issuing the Orders
dated May 16, 2005 and August 23, 2005. On August 11, 2006, the CA
dismissed the petition for lack of merit. Petitioners filed a motion for
reconsideration, but the CA denied it in a Resolution 29 dated December 4, 2006.
Hence, this instant petition for review oncertiorari.
Petitioners raise the following issues:
I.
THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE
THAT THE MOTION TO REINSTATE THE CASE AND ISSUE A
WARRANT OF ARREST WAS FILED BY ONE LEVITA DE CASTRO
WHO IS NOT A PARTY TO CRIMINAL CASE NO. 03-21[6]182.
II.
A PROCEDURAL TECHNICALITY THAT THE SUSPENSION
ALLOWED FOR ARRAIGNMENT IS ALREADY BEYOND THE 60-DAY
PERIOD MAY BE RELAXED IN THE INTEREST OF AN ORDERLY AND
SPEEDY ADMINISTRATION OF JUSTICE.
III.

THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569


(CRIMINAL CASE NO. 03-21[6]182) BY THE OFFICE OF THE CITY
PROSECUTOR OF MANILA HAS NOT YET BEEN COMPLETED. 30

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

The petition is denied for lack of merit.

EAISDH

On the first issue, petitioners are correct in pointing out that the Motion to
Reinstate the Case and Issue a Warrant of Arrest 31 was filed by one Levita De
Castro who is not a party to Criminal Case No. 03-216182. Records show that De
Castro is not even a private complainant, but a mere witness for being the owner
of the vehicles allegedly used by petitioners in defrauding and convincing private
respondents to part with their P260,000.00. Thus, the public respondent should
have granted petitioners' motion to expunge, and treated De Castro's motion as a
mere scrap of paper with no legal effect, as it was filed by one who is not a party
to that case.
Petitioners are also correct in noting that De Castro's motion was granted based
on the purported dismissal of their petition for review with the DOJ. In reinstating
the case and issuing the arrest warrant against Aguinaldo, the public respondent
erroneously relied on the DOJ Resolution dated September 6, 2004 dismissing
the petition for review in a different case, i.e., I.S. Nos. 02G-29349 & 02G-28820,
entitled "Levita De Castro v. Felilibeth Aguinaldo, for two (2) counts of estafa." As
correctly noted by petitioners, however, their petition for review with the DOJ is
still pending resolution. In particular, Assistant Chief State Prosecutor Miguel F.
Guido, Jr. certified that based on available records of the Office of the Chief State
Prosecutor, their petition for review filed in I.S. Number 02L-51569,
entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo" for estafa, is still pending
resolution as of May 27, 2005. 32 It bears stressing that their petition stemmed
from Criminal Case No. 03-216812, entitled "People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez" wherein the public respondent issued
the interlocutory orders assailed before the CA, and now before the Court.
On the second issue, the Court disagrees with petitioners' contention that the
provision of Section 11 (c), 33 Rule 116 of the Rules of Court limiting the
suspension for arraignment to only sixty (60) days is merely directory; thus, the
estafa case against them cannot proceed until the DOJ resolves their petition for
review with finality.
In Samson v. Judge Daway, 34 the Court explained that while the pendency of a
petition for review is a ground for suspension of the arraignment, the aforecited

provision limits the deferment of the arraignment to a period of 60 days reckoned


from the filing of the petition with the reviewing office. It follows, therefore, that
after the expiration of said period, the trial court is bound to arraign the accused
or to deny the motion to defer arraignment. 35
In Dio v. Olivarez, 36 the Court held that it did not sanction an indefinite
suspension of the proceedings in the trial court. Its reliance on the reviewing
authority, the Justice Secretary, to decide the appeal at the soonest possible time
was anchored on the rule provided under Department Memorandum Order No.
12, dated 3 July 2000, which mandates that the period for the disposition of
appeals or petitions for review shall be seventy-five (75) days. 37
In Heirs of Feraren v. Court of Appeals, 38 the Court ruled that in a long line of
decisions, it has repeatedly held that while rules of procedure are liberally
construed, the provisions on reglementary periods are strictly applied,
indispensable as they are to the prevention of needless delays, and are
necessary to the orderly and speedy discharge of judicial business. After all,
rules of procedure do not exist for the convenience of the litigants, and they are
not to be trifled with lightly or overlooked by the mere expedience of invoking
"substantial justice." Relaxation or suspension of procedural rules, or the
exemption of a case from their operation, is warranted only by compelling
reasons or when the purpose of justice requires it. 39
Consistent with the foregoing jurisprudence, and there being no such reasons
shown to warrant relaxation of procedural rules in this case, the CA correctly
ruled, thus:
In the case at bar, the petitioners' petition for review was filed with the
Secretary of Justice on February 27, 2004. As early as April 16, 2004,
upon the petitioners' motion, the arraignment of the petitioners herein
was ordered deferred by the public respondent. We believe that the
period of one year and one month from April 16, 2004 to May 16, 2005
when the public respondent ordered the issuance of a warrant for the
arrest of petitioner Aguinaldo, was more than ample time to give the
petitioners the opportunity to obtain a resolution of their petition for
review from the DOJ. The petitioners though submitted a Certification
from the DOJ dated May 30, 2005 stating that their petition for review is

pending resolution by the Department as of May 27, 2005. However,


such delay in the resolution does not extend the period of 60 days
prescribed under the afore-quoted Section 11(c), Rule 116 of the
Revised Rules on Criminal Procedure. Besides, the petitioners may be
faulted for the delay in the resolution of their petition. According to their
counsel, she received the letter dated April 15, 2004 from the DOJ
requiring her to submit the pertinent pleadings relative to petitioners'
petition for review; admittedly, however, the same was complied with only
on October 15, 2004. We therefore find that the trial court did not commit
grave abuse of discretion in issuing the assailed orders. 40

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

The Court finds petitioners' reliance on Sales 42 as misplaced. A closer look into
said case would reveal that the accused therein was denied his right to move for
a reconsideration or a reinvestigation of an adverse resolution in a preliminary
investigation under the Rules of Procedure of the Ombudsman before the filing of
an Information. In contrast, petitioners in this case were afforded their right to
move for reconsideration of the adverse resolution in a preliminary investigation
when they filed their "Motion for Reconsideration and Motion for the Withdrawal
of Information Prematurely Filed with the Regional Trial Court, Branch 8, City of
Manila," 43pursuant to Section 3 of the 2000 National Prosecution Service (NPS
Rule on Appeal) 44 and Section 56 of the Manual for Prosecutors. 45

With the Information for estafa against petitioners having been filed on July 16,
2003, the public respondent cannot be faulted with grave abuse of discretion in
issuing the August 23, 2005 Order denying their motion to quash warrant of
arrest, and setting their arraignment, pending the final resolution of their petition
for review by the DOJ. The Court believes that the period of almost one (1) year
and seven (7) months from the time petitioners filed their petition for review with
the DOJ on February 27, 2004 to September 14, 2005 46 when the trial court
finally set their arraignment, was more than ample time to give petitioners the
opportunity to obtain a resolution of their petition. In fact, the public respondent
had been very liberal with petitioners in applying Section 11 (c), Rule 116 of the
Rules of Court which limits the suspension of arraignment to a 60-day period
from the filing of such petition. Indeed, with more than eleven (11) years having
elapsed from the filing of the petition for review and petitioners have yet to be
arraigned, it is now high time for the continuation of the trial on the merits in the
criminal case below, as the 60-day period counted from the filing of the petition
for review with the DOJ had long lapsed.
On whether petitioners were accorded their right to a complete preliminary
investigation as part of their right to due process, the Court rules in the
affirmative. Having submitted his Counter-Affidavit and Rejoinder-Affidavit to the
OCP of Manila before the filing of Information for estafa, Perez cannot be heard
to decry that his right to preliminary investigation was not completed. For her part,
while Aguinaldo was not personally informed of any notice of preliminary
investigation prior to the filing of the Information, she was nonetheless given
opportunity to be heard during such investigation. In petitioners' motion for
reconsideration 47 of the February 25, 2003 Resolution of ACP Gonzaga,
Aguinaldo relied mostly on the Counter-Affidavit and Rejoinder-Affidavit of Perez
to assail the recommendation of the prosecutor to indict her for estafa. Since the
filing of such motion for reconsideration was held to be consistent with the
principle of due process and allowed under Section 56 of the Manual for
Prosecutors, 48 she cannot complain denial of her right to preliminary
investigation.
Both petitioners cannot, therefore, claim denial of their right to a complete
preliminary investigation as part of their right to due process. After all, "[d]ue

process simply demands an opportunity to be heard. Due process is satisfied


when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy. Where an opportunity to be heard either
through oral arguments or through pleadings is accorded, there is no denial of
procedural due process." 49
In fine, the Court holds that public respondent erred in issuing the May 16, 2005
Order granting the Motion to Reinstate Case and to Issue Warrant of Arrest, as it
was filed by one who is not a party to the case, and it was based on the DOJ's
dismissal of a petition for review in a different case. Nevertheless, the Court
upholds the CA ruling that the public respondent committed no grave abuse of
discretion when he issued the August 23, 2005 Order denying petitioners' motion
to quash warrant of arrest, and setting their arraignment, despite the pendency of
their petition for review with the DOJ. For one, the public respondent had been
very liberal in applying Section 11 (c), Rule 116 of the Rules of Court which
allows suspension of arraignment for a period of 60 days only. For another,
records show that petitioners were given opportunity to be heard during the
preliminary investigation of their estafa case.
Considering that this case had been held in abeyance long enough without
petitioners having been arraigned, the Court directs the remand of this case to
the trial court for trial on the merits with strict observance of Circular No. 3898 dated August 11, 1998, or the "Implementing the Provisions of Republic Act
No. 8493, entitled 'An Act to Ensure a Speedy Trial of All Criminal Cases Before
the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court,
Appropriating Funds Therefor, and for Other Purposes.'" In this regard, suffice it
to state that petitioners cannot invoke violation of their right to speedy trial
because Section 9 (3) of Circular No. 38-98 excludes in computing the time within
which trial must commence the delay resulting from extraordinary remedies
against interlocutory orders, such as their petitions before the CA and the Court.
Finally, in order to avoid delay in the proceedings, judges are reminded that the
pendency of a motion for reconsideration, motion for reinvestigation, or petition
for review is not a cause for the quashal of a warrant of arrest previously issued
because the quashal of a warrant of arrest may only take place upon the finding

that no probable cause exists. Moreover, judges should take note of the
following:
HaIESC

1. If there is a pending motion for reconsideration or motion for


reinvestigation of the resolution of the public prosecutor, the
court may suspend the proceedings upon motion by the
parties. However, the court should set the arraignment of the
accused and direct the public prosecutor to submit the
resolution disposing of the motion on or before the period
fixed by the court, which in no instance could be more than
the period fixed by the court counted from the granting of the
motion to suspend arraignment, otherwise the court will
proceed with the arraignment as scheduled and without
further delay.
2. If there is a pending petition for review before the DOJ, the court
may suspend the proceedings upon motion by the parties.
However, the court should set the arraignment of the
accused and direct the DOJ to submit the resolution
disposing of the petition on or before the period fixed by the
Rules which, in no instance, could be more than sixty (60)
days from the filing of the Petition for Review before the DOJ,
otherwise, the court will proceed with the arraignment as
scheduled and without further delay.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated
August 11, 2006 of the Court of Appeals and its Resolution dated December 4,
2006 in CA-G.R. SP No. 92094, are AFFIRMED. Considering that the
proceedings in this criminal case had been held in abeyance long enough, let the
records of this case be remanded to the trial court which is hereby DIRECTED to
try the case on the merits with dispatch in accordance with the Court's Circular
No. 38-98 dated August 11, 1998.
SO ORDERED.
|||

(Aguinaldo v. Ventus, G.R. No. 176033, [March 11, 2015])

8.
[G.R. No. 101837. February 11, 1992.]
ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF
APPEALS; THE HON. BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court, NCJR Pasig, M.M.; and
PEOPLE OF THE PHILIPPINES, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST
UNDER SEC. 5, RULE 113, NOT APPLICABLE IN CASE AT BAR. We do not
believe that the warrantless "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure which provides as follows: "Sec. 5. Arrest without warrant; when
lawful. A peace officer or a private person may, without a warrant, arrest a
person: (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b) When an offense
has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and (c) When the
person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to
another. In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or jail,
and he shall be proceeded against in accordance with Rule 112, Section 7."
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
arresting officers obviously were not present, within the meaning of Section 5(a),
at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be reasonably regarded as effected "when
[the shooting had] in fact just been committed" within the meaning of Section 5
(b). Moreover, none of the "arresting" officers had any "personal knowledge" of

facts indicating that petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived from statements made
by alleged eyewitnesses to the shooting -- one stated that petitioner was the
gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." It is thus clear to the Court that
there was no lawful warrantless arrest of petitioner within the meaning of Section
5 of Rule 113.
2. ID.; ID.; ID.; ACCUSED ENTITLED TO A PRELIMINARY INVESTIGATION
WITHOUT ANY CONDITIONS. Petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he in
fact placed himself at the disposal of the police authorities. He did not state that
he was "surrendering" himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article 125
of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without
any conditions. Moreover, since petitioner had not been arrested, with or without
a warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation.
3. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION; NO WAIVER
THEREOF MADE IN CASE AT BAR. Turning to the second issue of whether
or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation
be conducted. As earlier pointed out, on the same day that the information for
murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor
an omnibus motion for immediate release and preliminary investigation. The

Solicitor General contends that that omnibus motion should have been filed with
the trial court and not with the Prosecutor, and that petitioner should accordingly
be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be
predicated on such a slim basis. The preliminary investigation was to be
conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the
time of filing of petitioner's omnibus motion, the information for murder had
already been filed with the Regional Trial Court: it is not clear from the record
whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. Nonetheless, since petitioner in his omnibus
motion was asking for preliminary investigation and not for a re-investigation and
since the Prosecutor himself did file with the trial court, on the 5th day after filing
the information for murder, a motion for leave to conduct preliminary investigation
(attaching to his motion a copy of petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed with the trial court. What was
crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that
the trial court was five (5) days later apprised of the desire of the petitioner for
such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on
the (mistaken) supposition apparently made by the Prosecutor that Section 7 of
Rule 112 of the Revised Court was applicable, the 5-day reglementary period in
Section 7, Rule 112 must be held to have been substantially complied with. We
believe and so hold that petitioner did not waive his right to a preliminary
investigation. The rule is that the right to preliminary investigation is waived when
the accused fails to invoke it before or at the time of entering a plea at
arraignment. In the instant case, petitioner Go had vigorously insisted on his right
to preliminary investigation before his arraignment. We do not believe that by
posting bail, petitioner had waived his right to preliminary investigation. Petitioner
Go asked for release on recognizance or on bail and for preliminary investigation
in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In

fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT AND A COMPONENT PART OF
DUE PROCESS. While the right to a preliminary investigation is statutory
rather than constitutional in its fundament, since it has in fact been established by
statute, it is a component part of due process in criminal justice. The right to have
a preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other penalty,
is not a mere formal or technical right; it is a substantive right. The accused in a
criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation,
not to speak of expense; the right to an opportunity to avoid a process painful to
any one save, perhaps, to hardened criminals, is a valuable right. To deny
petitioner's claim to a preliminary investigation would be to deprive him of the full
measure of his right to due process.
5. ID.; ID.; FAILURE TO ACCORD PRELIMINARY INVESTIGATION DOES NOT
IMPAIR VALIDITY OF INFORMATION FILED. Contrary to petitioner's
contention the failure to accord preliminary investigation, while constituting a
denial of the appropriate and full measure of the statutory process of criminal
justice, did not impair the validity of the information for murder nor affect the
jurisdiction of the trial court.
6. ID.; ID.; ACCUSED ENTITLED TO PRELIMINARY INVESTIGATION EVEN
THOUGH TRIAL ON THE MERITS HAS ALREADY BEGAN. We consider that
petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner. The
constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. Petitioner was forced to undergo arraignment and
literally pushed to trial without preliminary investigation, with extraordinary haste,
to the applause from the audience that filled the courtroom. If he submitted to
arraignment and trial, petitioner did so "kicking and screaming," in a manner of
speaking. During the proceedings held before the trial court on 23 August 1991,
the date set for arraignment of petitioner, and just before arraignment, counsel

made very clear petitioner's vigorous protest and objection to the arraignment
precisely because of the denial of preliminary investigation.
7. ID.; ID.; ACCUSED ENTITLED TO BE RELEASED ON BAIL AS A MATTER
OF RIGHT. In respect of the matter of bail, petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record
concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong,
the Prosecutor may move in the trial court for cancellation of petitioner's bail. It
would then be up to the trial court, after a careful and objective assessment of the
evidence on record, to grant or deny the motion for cancellation of bail. It must
also be recalled that the Prosecutor had actually agreed that petitioner was
entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all and certainly no new or additional evidence had been
submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before.

8. ID.; ID.; RELIANCE ON THE CASE OF UMIL v. RAMOS, MISPLACED;


OFFENSE COMMITTED NOT CONSIDERED A "CONTINUING CRIME." The
reliance of both petitioner and the Solicitor General upon Umil v. Ramos (G.R.
No. 81567, promulgated 3 October 1991) is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the
legality of the warrantless arrests of petitioners made from one (1) to fourteen
(14) days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion,
membership in an outlawed organization like the New Peoples Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an
offense which was obviously commenced and completed at one definite location
in time and space. No one had pretended that the fatal shooting of Maguan was a
"continuing crime."

9. CONSTITUTIONAL LAW; STATE SHOULD REAFFIRM ITS OBLIGATION TO


RESPECT THE RIGHTS AND LIBERTIES OF ITS CONSTITUENTS; TO
ACCORD AN ACCUSED HIS RIGHT TO A PRELIMINARY INVESTIGATION
AND TO BAIL IN CASE AT BAR, NOT AN IDLE CEREMONY. To reach any
other conclusion here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently
admitted into the record would be to legitimize the deprivation of due process and
to permit the Government to benefit from its own wrong or culpable omission and
effectively to dilute important rights of accused persons well-nigh to the vanishing
point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, couldturn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And,
in any case, it would not be idle ceremony; rather it would be a celebration by the
State of the rights and liberties of its own people and a re-affirmation of its
obligation and determination to respect those rights and liberties.
CRUZ, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; STATUTORY RIGHTS OF
ACCUSED TO PROCEDURAL DUE PROCESS VITIATED IN CASE AT BAR.
Petitioner had from the start demanded a preliminary investigation and that his
counsel has reluctantly participated in the trial only because the court threatened
to replace him with a counselde oficio if he did not. Under these circumstances, I
am convinced that there was no waiver. The petitioner was virtually compelled to
go to trial. Such compulsion and the unjustified denial of a clear statutory right of
the petitioner vitiated the proceedings as violative of procedural due process.
GUTIERREZ, JR., J., concurring:
1. JUDICIAL ETHICS; COURTS; IMPORTANCE OF FOLLOWING THE RULES
EMPHASIZED. The need for a trial court to follow the Rules and to be fair,
impartial, and persistent in getting the true facts of a case is present in all cases
but it is particularly important if the accused is indigent; more so, if he is one of
those unfortunates who seem to spend more time behind bars than outside.
Unlike the accused in this case who enjoys the assistance of competent counsel,
a poor defendant convicted by wide and unfavorable media coverage may be

presumed guilty before trial and be unable to defend himself properly. Hence, the
importance of the court always following the Rules.
GRIO-AQUINO, J., dissenting:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION,
NO LONGER NEEDED; RETURN OF CASE TO THE PROSECUTOR,
SUPEREROGATORY. I do not believe that there is still need to conduct a
preliminary investigation the sole purpose of which would be to ascertain if there
is sufficient ground to believe that a crime was committed (which the petitioner
does not dispute) and that he (the petitioner) is probably guilty thereof (which the
prosecutor, by filing the information against him, presumably believed to be so).
In the present stage of the presentation of the prosecution's evidence, to return
the case to the Prosecutor to conduct a preliminary investigation under Rule 112
of the 1985 Rules on Criminal Procedure would be supererogatory.
2. ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION, NOT A
CONSTITUTIONAL RIGHT. It should be remembered that as important as is
the right of the accused to a preliminary investigation, it is not a constitutional
right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's
jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to
confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
3. ID.; ID.; HEARING OF APPLICATION FOR BAIL; SHOULD NOT BE
SUSPENDED AND SHOULD NOT BE SUBORDINATED TO THE
PRELIMINARY INVESTIGATION OF THE CHARGE. The court's hearing of
the application for bail should not be subordinated to the preliminary investigation
of the charge. The hearing should not be suspended, but should be allowed to
proceed for it will accomplish a double purpose. The parties will have an
opportunity to show not only: (a) whether or not there is probable cause to believe
that the petitioner killed Eldon Maguan, but more importantly (b) whether or not
the evidence of his guilt is strong. The judge's determination that the evidence of
his guilt is strong would naturally foreclose the need for a preliminary
investigation to ascertain the probability of his guilt. The bail hearing may not be
suspended because upon the filing of an application for bail by one accused of a

capital offense, "the judge is under a legal obligation to receive evidence with the
view of determining whether evidence of guilt is so strong as to warrant denial of
bond."
4. ID.; ID.; ABOLITION OF DEATH PENALTY DID NOT MAKE THE RIGHT TO
BAIL ABSOLUTE; ACCUSED MAY NOT BE RELEASED PENDING HEARING
OF PETITION FOR BAIL. The abolition of the death penalty did not make the
right to bail absolute, for persons charged with offenses punishable by reclusion
perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987
Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial
court for having granted the motion for bail in a murder case without any hearing
and without giving the prosecution an opportunity to comment or file objections
thereto. Similarly, this Court held inPeople vs. Bocar, 27 SCRA 512: ". . . due
process also demands that in the matter of bail the prosecution should be
afforded full opportunity to present proof of the guilt of the accused. Thus, if it
were true that the prosecution in this case was deprived of the right to present its
evidence against the bail petition, or that the order granting such petition was
issued upon incomplete evidence, then the issuance of the order would really
constitute abuse of discretion that would call for the remedy of certiorari." The
petitioner may not be released pending the hearing of his petition for bail for it
would be incongruous to grant bail to one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).
5. ID.; ID.; TERM "ARREST," CONSTRUED. Arrest is the taking of a person
into custody in order that he may be bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked
into the San Juan Police Station on July 8, 1991, and placed himself at the
disposal of the police authorities who clamped him in jail after he was identified
by an eyewitness as the person who shot Maguan, he was actually and
effectively arrested. His filing of a petition to be released on bail was a waiver of
any irregularity attending his arrest and estops him from questioning its validity
(Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.Villaraza, 120 SCRA 525).

DECISION
FELICIANO, J :
p

According to the findings of the San Juan Police in their Investigation Report, 1 on
2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is
a one-way street and started travelling in the opposite or "wrong" direction. At the
corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked over and shot
Maguan inside his car. Petitioner then boarded his car and left the scene. A
security guard at a nearby restaurant was able to take down petitioner's car plate
number. The police arrived shortly thereafter at the scene of the shooting and
there retrieved an empty shell and one round of live ammunition for a 9mm
caliber pistol. Verification at the Land Transportation Office showed that the car
was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had dined
at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the cashier of
the bake shop. The security guard of the bake shop was shown a picture of
petitioner and he positively identified him as the same person who had shot
Maguan. Having established that the assailant was probably the petitioner, the
police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a
complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
Ignacio ("Prosecutor") informed petitioner, in the Presence of his lawyers, that he
could avail himself of his right to preliminary investigation but that he must first

sign a waiver of the provisions of Article 125 of the Revised Penal Code.
Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
prcd

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for


frustrated homicide, filed an information for murder 3 before the Regional Trial
Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of
Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of

P100,000.00. The Prosecutor attached to the motion for leave a copy of


petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11
July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and
mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.
LLphil

On 23 July 1991, petitioner surrendered to the police.


By a Resolution dated 24 July 1991, this Court remanded the petition
for certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
Provincial Jail. On the same date, petitioner was arraigned. In view, however, of
his refusal to enter a plea, the trial court entered for him a plea of not guilty. The
trial court then set the criminal case for continuous hearings on 19, 24 and 26

September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22


November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondents' failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month,
thus prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas
corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
and the petition for habeas corpus, upon the other, were subsequently
consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying
petitioner's motion to restrain his arraignment on the ground that motion had
become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which
he was arrested and charged had been "freshly committed." His identity
had been established through investigation. At the time he showed up at
the police station, there had been an existing manhunt for him. During
the confrontation at the San Juan Police Station, one witness positively
identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity
attending his arrest. He waived his right to preliminary investigation by
not invoking it properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July
1991 Order because the trial court had the inherent power to amend and
control its processes so as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a
valid commitment order (issued by the trial judge after petitioner

surrendered to the authorities whereby petitioner was given to the


custody of the Provincial Warden), the petition for habeas corpus could
not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to held
in abeyance the hearing of the criminal case below until further orders from this
Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim.

LLphil

In respect of the first issue, the Solicitor General argues that under the facts of
the case, petitioner had been validly arrested without warrant. Since petitioner's
identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days
later at the San Juan Police Station. The Solicitor General invokes Nazareno v.
Station Commander, etc., et al., 16 one of the seven (7) cases consolidated
with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc. v.
Ramos et al., 17 where a majority of the Court upheld a warrantless arrest as
valid although effected fourteen (14) days after the killing in connection with
which Nazareno had been arrested. Accordingly, in the view of the Solicitor
General, the provisions of Section 7, Rule 112 of the Rules of Court were
applicable and because petitioner had declined to waive the provisions of Article
125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the

police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantless arrest. Since there had been no lawful warrantless
arrest, Section 7, Rule 112 of the Rules of Court which establishes the only
exception to the right to preliminary investigation, could not apply in respect of
petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in
the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
vote, the Court sustained the legality of the warrantless arrests of petitioners
made from one (1) to fourteen (14) days after the actual commission of the
offenses, upon the ground that such offenses constituted "continuing crimes."
Those offenses were subversion, membership in an outlawed organization like
the New Peoples Army, etc. In the instant case, the offense for which petitioner
was arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantless "arrest" or detention of petitioner
in the instant case falls within the terms of Section 5 of Rule 113 of the 1985
Rules on Criminal Procedure which provides as follows:

"Sec. 5. Arrest without warrant; when lawful. A peace officer or a


private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be created has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7."

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the
meaning of Section 5 (b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who
had shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting one
stated that petitioner was the gunman; another was able to take down the
alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute
"personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of
petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section
7 of Rule 112, which provides:
"Sec. 7. When accused lawfully arrested without warrant. When a
person is lawfully arrested without a warrant for an offense cognizable by
the Regional Trial Court the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended
party or arresting office or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance
of a lawyer and in case of non-availability of a lawyer, a responsible
person of his choice. Notwithstanding such waiver, he may apply for
bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
Cdpr

If the case has been filed in court without a preliminary investigation


having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule." (Underscoring supplied).

is also not applicable. Indeed, petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he
in fact placed himself at the disposal of the police authorities. He did not state
that he was "surrendering" himself, in all probability to avoid the implication he
was admitting that he had slain Eldon Maguan or that he was otherwise guilty
of a crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article
125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him
without any conditions. Moreover, since petitioner had not been arrested; with
or without a warrant, he was also entitled to be released forthwith subject only
to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional Trial
Court. Petitioner filed with the prosecutor an omnibus motion for immediate
release and preliminary investigation. The Solicitor General contends that
omnibus motion should have been filed with the trial court and not with the
Prosecutor, and that petitioner should accordingly be held to have waived his
right to preliminary investigation. We do not believe that waiver of petitioner's
statutory right to preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the Prosecutor, not
by the Regional Trial Court. It is true that at the time of filing of petitioner's

omnibus motion, the information for murder had already been filed with the
Regional Trial Court; it is not clear from the record whether petitioner was aware
of this fact at the time his omnibus motion was actually filed with the Prosecutor.
In Crespo v. Mogul, 19 this Court held:
"The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets
in motion the criminal action against the accused in Court. Should the
fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be
submitted to the Court for appropriate action. While it is true that the
fiscal has the quasi judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had already
been brought to Court whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the consideration
of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused, or the right of the People
to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such] as its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The
Court is the best and sole judge on what to do with the case before
it. . . ." 20 (Citations omitted, underscoring supplied).

Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a reinvestigation (Crespo v. Mogul involved a reinvestigation), and since the Prosecutor himself did file with the trial court, on
the 5th day after filing the information for murder, a motion for leave to conduct
preliminary investigation (attaching to his motion a copy of petitioner's
omnibus motion), we conclude that petitioner's omnibus motion was in effect

filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without
such preliminary investigation, and that the trial court was five (5) days later
apprised of the desire of the petitioner for such preliminary investigation.
Finally, the trial court did in factgrant the Prosecutor's prayer for leave to
conduct preliminary investigation. Thus, even on the (mistaken) supposition
apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised
Court was applicable, the 5-day reglementary period in Section 7, Rule 112
must be held to have been substantially complied with.
LexLib

We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part
of due process in criminal justice. 20 The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a mere formal or
technical right; it is asubstantive right. The accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense;
the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him of the full measure of his right to due
process.
The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary investigation
is waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment. 21In the instant case, petitioner Go had vigorously insisted
on his right to preliminary investigation before his arraignment. At the time of his
arraignment, petitioner was already before the Court of Appeals on certiorari,
prohibition and mandamus precisely asking for a preliminary investigation before
being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v.

Selfaison, 22 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming that they did not have the benefit
of a preliminary investigation." 23 In the instant case, petitioner Go asked for
release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate and
full measure of the statutory process of criminal justice, did not impair the validity
of the information for murder nor affect the jurisdiction of the trial court. 24
It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of the
prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all and certainly no new or additional evidence had been
submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released
on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner


remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and
a preliminary investigation forthwith accorded to petitioner. 25 It is true that the
prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not
warrant a finding of probable cause. In any event, the constitutional point is that
petitioner was notaccorded what he was entitled to by way of procedural due
process. 26 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause
from the audience that filled the courtroom. If he submitted to arraignment and
trial, petitioner did so "kicking and screaming," in a manner of speaking. During
the proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because
of the denial of preliminary investigation. 27 So energetic and determined were
petitioner's counsel's protest and objection that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with
counsel de oficio. During the trial, just before the prosecution called its first
witness, petitioner through counsel once again reiterated his objection to going to
trial without preliminary investigation; petitioner's counsel made or record his
"continuing objection." 28 Petitioner had promptly gone to the appellate court
on certiorari and prohibition to challenge the lawfulness of the procedure he was
being forced to undergo and the lawfulness of his detention. 29 If he did not
walkout on the trial, and if he cross-examined the Prosecution's witnesses, it was
because he was extremely loath to be represented by counsel de oficioselected
by the trial judge, and to run the risk of being held to have waived also his right to
use what is frequently the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a careful and objective

assessment of the evidence on record, to grant or deny the motion for


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

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions
CRUZ, J., concurring:
I was one of the members of the Court who initially felt that the petitioner had
waived the right to preliminary investigation because he freely participated in his
trial and his counsel even cross-examined the prosecution witnesses. A closer
study of the record, however, particularly of the transcript of the proceedings
footnoted in theponencia, reveals that he had from the start demanded a
preliminary investigation and that his counsel had reluctantly participated in the
trial only because the court threatened to replace him with a counsel de oficio if
he did not. Under these circumstances, I am convinced that there was no waiver.
The petitioner was virtually compelled to go to trial. Such compulsion and the
unjustified denial of a clear statutory right of the petitioner vitiated the
proceedings as violative of procedural due process.
It is true that the ruling we lay down here will take the case back to square one,
so to speak, but that is not the petitioner's fault. He had a right to insist that the
procedure prescribed by the Rules of Court be strictly observed. The delay
entailed by the procedural lapse and the attendant expense imposed on the
Government and the defendant must be laid at the door of the trial judge for his
precipitate and illegal action.
It appears that the trial court has been moved by a desire to cater to public
opinion to the detriment of the impartial administration of justice. The petitioner as
portrayed by the media is not exactly a popular person. Nevertheless, the trial
court should not have been influenced by this irrelevant consideration,
remembering instead that its only guide was the mandate of the law.
GUTIERREZ, JR., J., concurring:
I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but
am at a loss for reasons why an experienced Judge should insist on proceeding
to trial in a sensational murder case without a preliminary investigation inspite of

the vigorous and continued objection and reservation of rights of the accused and
notwithstanding the recommendations of the Prosecutor that those rights must be
respected. If the Court had faithfully followed the Rules, trial would have
proceeded smoothly and if the accused is really guilty, then he may have been
convicted by now. As it is, the case has to go back to square one.
LexLib

I agree with Justice Isagani Cruz "that the trial court has (apparently) been
moved by a desire to cater to public opinion to the detriment of the impartial
administration of justice." Mass media has its duty to fearlessly but faithfully
inform the public about events and persons. However, when a case has received
wide and sensational publicity, the trial court should be doubly careful not only to
be fair and impartial but also to give the appearance of complete objectivity in its
handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and
persistent in getting the true facts of a case is present in all cases but it is
particularly important if the accused is indigent; more so, if he is one of those
unfortunates who seem to spend more time behind bars than outside. Unlike the
accused in this case who enjoys the assistance of competent counsel, a poor
defendant convicted by wide and unfavorable media coverage may be presumed
guilty before trial and be unable to defend himself properly. Hence, the
importance of the court always following the Rules.
While concurring with Justice Feliciano's ponencia, I am constrained to add the
foregoing observations because I feel they form an integral part of the Court's
decision.
GRIO-AQUINO, J., dissenting:
I regret that I cannot agree with the majority opinion in this case. At this point,
after four (4) prosecution witnesses have already testified, among them an
eyewitness who identified the accused as the gunman who shoot Eldon Maguan
inside his car in cold blood, and a security guard who identified the plate number
of the gunman's car, I do not believe that there is still need to conduct a
preliminary investigation the sole purpose of which would be to ascertain if there

is sufficient ground to believe that a crime was committed (which the petitioner
does not dispute) and that he (the petitioner) is probably guilty thereof (which the
prosecutor, by filing the information against him, presumably believed to be so).
In the present stage of the presentation of the prosecution's evidence, to return
the case to the prosecutor to conduct a preliminary investigation under Rule 112
of the 1985 Rules on Criminal Procedure would be supererogatory.
This case did not suffer from a lack of previous investigation. Diligent police work,
with ample media coverage, led to the identification of the suspect who, seven (7)
days after the shooting, appeared at the San Juan police station to verify news
reports that he was the object of a police manhunt. Upon entering the station, he
was positively identified as the gunman by an eyewitness who was being
interrogated by the police to ferret more clues and details about the crime. The
police thereupon arrested the petitioner and on the same day, July 8, 1991,
promptly filed with the Provincial Prosecutor of Rizal, a complaint for frustrated
homicide against him. As the victim died the next day, July 9, 1991, before an
information could be filed, the First Assistant Prosecutor, instead of filing an
information for frustrated homicide, filed an information for murder on July 11,
1991 in the Regional Trial Court, with no bail recommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for
preliminary investigation and release on bail (which was erroneously filed with his
office instead of the court), recommended a cash bond of P100,000 for his
release, and submitted the omnibus motion to the trial court for resolution.
Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly
after he had issued: (a) his order of July 12, 1991 approving the petitioner's cash
bail bond without a hearing, and (b) his order of July 16, 1991 granting the
Prosecutor leave to conduct a preliminary investigation, for he motu
proprio issued on July 17, 1991 another order rescinding his previous orders and
setting for hearing the petitioner's application for bail.
The cases cited in page 15 of the majority opinion in support of the view that the
trial of the case should be suspended and that the prosecutor should now
conduct a preliminary investigation, are not on all fours with this case. In Doromal
vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the

trial of the criminal case had not yet commenced because motions to quash the
information were filed by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S.
vs. Banzuela, 31 Phil. 565;San Diego vs. Hernandez, 24 SCRA 110 and People
vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases
preliminary investigations had in fact been conducted before the informations
were filed in court.
cdll

It should be remembered that as important as is the right of the accused to a


preliminary investigation, it is not a constitutional right. Its absence is not a
ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It
does not affect the Court's jurisdiction, nor impair the validity of the information
(Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the
right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
The petitioner's motion for a preliminary investigation is not more important that
his application for release on bail, just as the conduct of such preliminary
investigation is not more important than the hearing of the application for bail.
The court's hearing of the application for bail should not be subordinated to the
preliminary investigation of the charge. The hearing should not be suspended,
but should be allowed to proceed for it will accomplish a double purpose. The
parties will have an opportunity to show not only: (a) whether or not there is
probable cause to believe that the petitioner killed Eldon Maguan, but more
importantly (b) whether or not the evidence of his guilt is strong. The judge's
determination that the evidence of his guilt is strong would naturally foreclose the
need for a preliminary investigation to ascertain the probability of his guilt.
The bail hearing may not be suspended because upon the filing of an application
for bail by one accused of a capital offense, "the judge is under a legal
obligation to receive evidence with the view of determining whether evidence of
guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil.
210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial
Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs.
Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123.).
The abolition of the death penalty did not make the right to bail absolute, for
persons charged with offenses punishable by reclusion perpetua, when evidence

of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People
vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted
the motion for bail in a murder case without any hearing and without giving the
prosecution an opportunity to comment or file objections thereto.
LLphil

Similarly, this Court held in People vs. Bocar, 27 SCRA 512:


". . . due process also demands that in the matter of bail the prosecution
should be afforded full opportunity to present proof of the guilt of the
accused. Thus, if it were true that the prosecution in this case was
deprived of the right to present its evidence against the bail petition, or
that the order granting such petition was issued upon incomplete
evidence, then the issuance of the order would really constitute abuse of
discretion that would call for the remedy of certiorari." (Emphasis
supplied.).

The petitioner may not be released pending the hearing of his petition for bail for
it would be incongruous to grant bail to one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).
I respectfully take exception to the statements in the ponencia that the "petitioner
was not arrested at all" (p. 12) and that "petitioner had not been arrested, with or
without a warrant" (p. 130). Arrest is the taking of a person into custody in order
that he may be bound to answer for the commission of an offense (Sec. 1, Rule
113, Rules of Court). An arrest is made by an actual restraint of the person to be
arrested, or by his submission to the custody of the person making the arrest
(Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police
Station on July 8, 1991, and placed himself at the disposal of the police
authorities who clamped him in jail after he was identified by an eyewitnesses as
the person who shot Maguan, he was actually and effectively arrested. His filing
of a petition to be released on bail was a waiver of any irregularity attending his
arrest and stops him from questioning its validity (Callanta vs. Villanueva, 77
SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).
I, vote to dismiss the petition and affirm the trial court's order of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Davide, Jr. and Regalado, JJ., concur.
|||

(Go y Tambunting v. Court of Appeals, G.R. No. 101837, [February 11, 1992])

9.
[G.R. No. 108431. July 14, 2000.]
OSCAR G. RARO, petitioner, vs. THE HONORABLE
SANDIGANBAYAN (Second Division), THE HONORABLE
OMBUDSMAN and PEOPLE OF THE
PHILIPPINES, respondents.
Agrava Lucero Roxas & Martinez for petitioner.
The Solicitor General for respondents.
SYNOPSIS
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the Philippine
Charity Sweepstakes Office (PCSO). As such, petitioner was the Acting Manager
of the Special Projects Department that was in charge of the experimental Small
Town Lottery (STL), which under PCSO Resolution No. 118, dated April 1987,
was to be operated in certain areas of the country. In a complaint filed with the
Tanodbayan in Manila on May 20, 1988, Luis ("Bing") F. Abao, Provincial
Manager of the experimental STL in Daet, Camarines Norte, alleged that
petitioner, in his capacity as PCSO Corporate Secretary "personally and directly
intervened in the operation of said lottery to his financial benefit and advantage."
On July 2, 1992, an information dated May 19, 1992 was filed with the
Sandiganbayan, accusing petitioner with violation of Section 3 (b) of Republic Act
No. 3019. On October 12, 1992, petitioner filed with the Sandiganbayan, a motion
to quash the information, on the ground that the court did not acquire jurisdiction
in view of violation of accused's constitutional rights during the preliminary
investigation. Petitioner alleged further that there was a "jurally and
constitutionally defective determination of probable cause" as the complainant
and his witnesses were never personally examined by any of the officers at the
Office of the Ombudsman and the Special Prosecutor. Brushing aside said

allegations as mere speculations, the Sandiganbayan found no reason to depart


from its earlier conclusion that there was no compelling justification to disturb the
prosecution's finding of a probable cause. Hence, the instant petition to enjoin
respondents Sandiganbayan, the Ombudsman and the People of the Philippines
from proceeding with Criminal Case No. 17800.
The Supreme Court affirmed the assailed resolutions of the Sandiganbayan. The
Court ruled that the Sandiganbayan did not violate petitioner's right to due
process of law by its failure to personally examine the complainant before it
issued the warrant of arrest. In a preliminary examination for the issuance of a
warrant of arrest, a court is not required to review in detail the evidence submitted
during the preliminary investigation. What is required is that the judge "personally
evaluates the report and supporting documents submitted by the prosecution in
determining probable cause." In the absence of evidence that the Sandiganbayan
did not personally evaluate the necessary records of the case, the presumption of
regularity in the conduct of its official business shall stand. Neither did the Court
find any factual support to petitioner's claim that the 4-year delay in the
completion of the preliminary investigation is unexplained. The record clearly
showed that the Ombudsman exerted utmost effort to determine the veracity of
Abao's allegations against petitioner. The length of time it took before the
conclusion of the preliminary investigation may only be attributed to the
adherence of the Ombudsman and the NBI to the rules of procedure and the
rudiments of fair play. The Sandiganbayan was directed by the Court to proceed
with deliberate dispatch in the disposition of Criminal Case No. 17800.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI AND
PROHIBITION; NOT THE PROPER REMEDY TO ASSAIL DENIAL OF A
MOTION TO QUASH AN INFORMATION. It is settled that a special civil action
for certiorari and prohibition is not the proper remedy to assail the denial of a
motion to quash an information. This is succinctly underscored in Quion
v. Sandiganbayan as follows: "The special civil action of certiorari or prohibition is
not the proper remedy against interlocutory orders such as those assailed in
these proceedings; i.e., an order denying a motion to quash the information, and

one declaring the accused to have waived his right to present evidence and
considering the case submitted for decision. As pointed out by the Office of the
Solicitor General (citing Nierras v. Dacuycuy, 181 SCRA 1 [1990]), and Acharon
v. Purisima, et al., 13 SCRA 309; People v. Madaluyo, 1 SCRA 990), the
established rule is that when such an adverse interlocutory order is rendered, the
remedy is not to resort forthwith to certiorari or prohibition, but to continue with
the case in due course and, when an unfavorable verdict is handed down to take
an appeal in the manner authorized by law. It is only where there are special
circumstances clearly demonstrating the inadequacy of an appeal that the special
civil action of certiorari or prohibition may exceptionally be allowed. The Court
has been cited to no such special circumstances in the cases at bar." In the case
at bar, there is no showing of such special circumstances. The jurisdiction of the
Ombudsman over the complaint is not even questioned by petitioner as his
motion to quash the information is based on the allegedly "highly anomalous
preliminary investigation" that amounted to a denial of his rights to due process
and to speedy disposition of the charge against him. However, an incomplete
preliminary investigation or the absence thereof may not warrant the quashal of
an information. In such cases, the proper procedure is for the Sandiganbayan to
hold in abeyance any further proceedings conducted and to remand the case to
the Ombudsman for preliminary investigation or completion thereof. However,
granting arguendo that the preliminary investigation was sham and highly
anomalous in this case, that defect was cured when the above procedure was in
fact observed by the Sandiganbayan. Hence, on the issue alone of the propriety
of the remedy sought by petitioner, the instant petition for certiorari and
prohibition must fail. However, in the interest of justice, we shall resolve the issue
of whether or not the Ombudsman conducted the preliminary investigation
erroneously and irregularly.
SCaTAc

2. CONSTITUTIONAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS;


OFFICE OF THE OMBUDSMAN; NO FORM OR MANNER IS REQUIRED IN
FILING A COMPLAINT BEFORE SAID OFFICE; ISSUE OF SUFFICIENCY IN
THE FORM OF THE COMPLAINT IN CASE AT BAR WAS RENDERED MOOT
AND ACADEMIC BY PETITIONER'S FILING OF A COUNTER-AFFIDAVIT
WHEREIN HE CONTROVERTED ALLEGATIONS IN THE COMPLAINT.
Article XI, Section 12 of the 1987 Constitution, which was in force and effect

when Abao filed the complaint against petitioner, provides: "Sec. 12. The
Ombudsman and his Deputies, as protectors of the people, shall act promptly
on complaints filed in any form or manner against public officials or employees of
the Government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof." The mandate
to act promptly oncomplaints filed in any form or manner against officers or
employees of the Government is restated in Section 13 of Republic Act No. 6770
("The Ombudsman Act of 1989"), approved into law on November 17, 1989. The
same authority to act on complaints "in any form, either verbal or in writing," is
also reiterated in Rule 1, Section 3 of the Rules of Procedure of the Office of the
Ombudsman, which is embodied in Administrative Order No. 07 dated April 10,
1990, issued pursuant to the rule-making power of the Ombudsman under
Section 13 (8) of the 1987 Constitution and Sections 18, 23 and 27 of "The
Ombudsman Act of 1989." In accordance with the foregoing constitutional and
statutory provisions, this Court, in Diaz v. Sandiganbayan, held valid charges that
were not made in writing or under oath. This Court found as sufficient basis the
Solicitor General's sworn testimony at the joint fact-finding investigation
conducted by the Senate Blue Ribbon Committee and the Ombudsman for the
latter to conduct an investigation. On the other hand, in Olivas v. Office of the
Ombudsman, where the complaint against petitioner was initiated by anonymous
letters, this Court held that the PCGG, to whom the letters were addressed and
who became the complainant in the proceedings, should have reduced the
evidence it had gathered into affidavits. The submission of affidavits, provided for
in Rule II, Section 4 (a) of Administrative Order No. 07, is also required by due
process in adversary proceedings. However, the submission of affidavits is not
mandatory and jurisdictional. Rule 1, Section 3 of the same administrative order
merely states that it is "preferable" that the complaint "be in writing and under
oath" for its speedier disposition. Clearly in consonance with the provision that
the complaint may be in any form, the Ombudsman Rules of Procedure does not
require that the complaint be subscribed only before the Ombudsman or his duly
authorized representative. In any event, the issue of the sufficiency in form of the
complaint was rendered moot and academic by petitioner's filing of a counteraffidavit wherein he controverted the allegations in the complaint.

3. ID.; ID.; ID.; BY REFERRING COMPLAINT TO THE NATIONAL BUREAU OF


INVESTIGATION, THE OMBUDSMAN DID NOT THEREBY DELEGATE
CONDUCT OF THE PRELIMINARY INVESTIGATION OF THE CASE TO THAT
INVESTIGATIVE BUREAU; WHAT WAS DELEGATED WAS ONLY THE FACTFINDING FUNCTION, PREPARATORY TO PRELIMINARY INVESTIGATION
STILL TO BE CONDUCTED BY THE OMBUDSMAN. The referral of the
complaint to the NBI does not mean that the Ombudsman abdicated its
constitutional and statutory duty to conduct preliminary investigations. By
referring Abao's complaint to the NBI, the Ombudsman did not thereby delegate
the conduct of the preliminary investigation of the case to that investigative
bureau. What was delegated was only the fact-finding function, preparatory to the
preliminary investigation still to be conducted by the Ombudsman. Notably, under
Rule II, Section 2 (d) of Administrative Order No. 07, the investigating officer has
the option to forward the complaint to the appropriate office or official for factfinding investigation. While Administrative Order No. 07 took effect in mid-1990 or
after the complaint in this case was referred to the NBI, the inclusion of that
constitutionally sanctioned practice in the Ombudsman Rules of Procedure lends
validity to the Ombudsman's action in this case. Under the circumstances of this
case, the Ombudsman's failure to personally administer oath to the complainant
does not mean that the Ombudsman did not personally determine the existence
of probable cause to warrant the filing of an information.

4. ID.; ID.; ID.; LENGTH OF TIME IT TOOK BEFORE CONCLUSION OF


PRELIMINARY INVESTIGATION MAY ONLY BE ATTRIBUTED TO
ADHERENCE OF THE OMBUDSMAN AND THE NBI OF THE RULES OF
PROCEDURE AND RUDIMENTS OF FAIR PLAY. Neither is there factual
support to petitioner's claim that the 4-year delay in the completion of the
preliminary investigation is unexplained. The record clearly shows that the
Ombudsman exerted utmost effort to determine the veracity of Abao's
allegations against petitioner. That it took the NBI almost two years to complete
its report on the matter does not mean that petitioner's right to speedy disposition
of the charge was brushed aside. If delay may be imputed in the proceedings, the
same should be reckoned only from October 25, 1991 when petitioner filed his

counter-affidavit. Thirty-six (36) days thereafter or on November 29, 1991, GIO II


Caraos issued the Resolution recommending the filing of the information. Further
delay, if indeed it could be called one, was caused by the review of GIO II Caraos'
recommendation by her superiors. Some seven and a half months later, or on
June 11, 1992, the information was filed with the Sandiganbayan. There is thus
no reason to conclude that the Ombudsman ran roughshod over the petitioner's
right to a speedy preliminary investigation. In the determination of whether or not
that right has been violated, the factors that may be considered and weighed are
"the length of delay, the reasons for such delay, the assertion or failure to assert
such right by the accused, and the prejudice caused by the delay." The length of
time it took before the conclusion of the preliminary investigation may only be
attributed to the adherence of the Ombudsman and the NBI to the rules of
procedure and the rudiments of fair play. The allegations of Abao's complaint
had to be verified; the Ombudsman did not believe the same hook, line and
sinker. Recently, the Court held that while the Rules of Court provides a ten-day
period from submission of the case within which an investigating officer must
come out with a resolution, that period of time is merely directory.
DcCHTa

5. ID.; RIGHT TO DUE PROCESS OF LAW; NOT VIOLATED BY


SANDIGANBAYAN BY ITS FAILURE TO PERSONALLY EXAMINE
COMPLAINANT BEFORE IT ISSUED WARRANT OF ARREST; IN A
PRELIMINARY INVESTIGATION FOR ISSUANCE OF A WARRANT OF
ARREST, A COURT IS NOT REQUIRED TO REVIEW IN DETAIL THE
EVIDENCE SUBMITTED DURING PRELIMINARY INVESTIGATION. Neither
did the Sandiganbayan violate petitioner's right to due process of law by its failure
to personally examine the complainant before it issued the warrant of arrest. In
a preliminary examination for the issuance of a warrant of arrest, a court is not
required to review in detail the evidence submitted during the preliminary
investigation. What is required is that the judge "personally evaluates the report
and supporting documents submitted by the prosecution in determining probable
cause." In the absence of evidence that the Sandiganbayan did not personally
evaluate the necessary records of the case, the presumption of regularity in the
conduct of its official business shall stand.

DECISION
YNARES-SANTIAGO, J :
p

The issue in this special civil action of certiorari and prohibition is whether or not
the Sandiganbayan gravely abused its discretion in denying a motion to quash an
information on the ground that the preliminary investigation allegedly violated the
right of the accused to due process of law.
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the Philippine
Charity Sweepstakes Office (PCSO). As such, petitioner was the Acting Manager
of the Special Projects Department that was in charge of the experimental Small
Town Lottery (STL), which under PCSO Resolution No. 118, dated April 1987,
was to be operated in certain areas of the country. On July 30, 1987, the PCSO,
through Atty. Reynaldo E. Ilagan of the Special Projects Department, authorized
Elmec Trading and Management Corporation (ELMEC) to operate the STL in the
province of Camarines Norte. ELMEC in turn employed Luis ("Bing") F. Abao, a
resident of Daet, Camarines Norte, as Provincial Manager of the experimental
STL in said province. 1 Abao allegedly invested P100,000.00 in the STL
operation in that province.
In a complaint that he filed with the Tanodbayan in Manila on May 20, 1988,
Abao alleged that petitioner, in his capacity as PCSO Corporate Secretary,
"personally and directly intervened in the operation of said lottery to his financial
benefit and advantage" by committing the following acts:
(1) Causing the employment of members of his family in the
experimental STL project that was under his supervision, in violation of
Section 3 (d) of the Anti-Graft Law;
AcEIHC

(2) Deciding on the dismissal of certain lottery employees and in bad


faith driving Abao "to sever from the management of lottery" which at
that time was grossing about P250,000.00 daily under a "profit-sharing"
agreement, thus causing Abao "damage and injury" in the amount of
P1,300,000.00, in violation of Section 3 (e) of the Anti-Graft Law; and

(3) Regularly demanding from Abao amounts totaling more than


P100,000.00 as his share in the experimental lottery, in violation of
Section 3 (h) of the Anti-Graft Law.

Abao maintained further that petitioner got mad at him when he gave petitioner
a check instead of cash, which petitioner later used to accuse Abao of issuing a
bouncing check notwithstanding that the check was not encashed. Abao added
that petitioner was not only dishonest but displayed such dishonesty. 2 The
complaint filed by Abao's counsel was verified and subscribed before a notary
public, 3 and docketed in the Office of the Ombudsman as OSP-88-01263.
Overall Ombudsman Jose G. Colayco, on July 1, 1988, endorsed the complaint
to the National Bureau of Investigation (NBI). 4 On May 11, 1989, NBI-LED
Officer-in-Charge Gerarda G. Galang submitted a report stating that the
investigation conducted by NBI Senior Agent Salvador A. Duka yielded the
following findings:
(a) On the charge of employment of relatives, Abao charged that
petitioner asked him to appoint his (petitioner's) brother as station
manager of the lottery in Labo, Camarines Norte. Likewise according to
Abao, petitioner imposed on him the appointment of petitioner's sister,
Marissa Raro-Remigio as the STL provincial cashier. Per the joint
affidavit of Yoly Malubay, Ruben Galeon, Rosalio Poblete and Francisco
Villaluz, petitioner's brother named Antonio, the lottery station manager,
signed payrolls, vouchers and other pertinent papers using the name
Joel Remigio, Marissa's husband. In 1988, Antonio Raro was appointed
Assistant Provincial Operations Manager of the STL in Camarines Norte.
On the other hand, Marissa Raro-Remigio claimed that it was ELMEC
that offered her the position of treasurer of the STL and that on January
27, 1988, ELMEC terminated the employment of Abao and the
employees he had hired. However, the circumstances surrounding
ELMEC's employment of petitioner's brother and sister were not verified
from the owners of ELMEC.
(b) With respect to the charge that petitioner demanded from Abao the
total amount of P100,000.00, no receipt was shown to prove petitioner's
having in fact received that sum although Ruidera and Galeon, in their
affidavits, confirmed that said amount was given to petitioner and to Atty.

Ilagan. Since the sworn statements of Ilagan and Cordez and those of
Fernando Carrascoso and Rustico Manalo, who allegedly received 25%
of the proceeds of the STL, had not yet been taken, there were certain
aspects of the charge that should be considered. Hence, "no definite
conclusion could be made" thereon.
AaHDSI

(c) The subject of dismissal of employees was not yet covered by the
investigation.

With these findings, Galang recommended that further investigation be


conducted and that a copy of the "evaluation comment" be furnished the
Ombudsman with the information "that further investigation (was) still being
conducted on some aspects of the case." 5 Accordingly, NBI Director J. Antonio
M. Carpio endorsed on May 11, 1989 the "evaluation comment" and the NBI
agent's report to the Ombudsman. 6
On July 12, 1989, NBI Agent Duka submitted a Disposition Form stating that per
the joint affidavit of Yolly Manubay, Ruben Galeon, Rosario Poblete and
Francisco Villaluz, petitioner's brother, Antonio Raro signed "numerous vouchers,
payrolls and other papers" in the name of Joel Remigio. The sworn statement of
Teddy Aguirre and xerox copies of vouchers supported this. However, the original
copies of the vouchers could not be secured on account of the cessation of
operation of the STL in Camarines Norte since July 1988. Neither could the
sworn statement of Antonio Raro be secured. Thus, NBI Agent Duka
recommended that further investigation be conducted in coordination with
LUCSO in Lucena City. 7
Ombudsman Graft Investigation Officer II (GIO II) Theresa Medialdea-Caraos
submitted to Ombudsman Conrado Vasquez a Memorandum dated March 15,
1990, with the following recommendation:
"RECOMMENDED ACTION: The initial report of the NBI points only to
the anomalies allegedly committed by the respondent's brother, Antonio.
The appointment of his sister which was supposedly imposed on the
complainant is not supported by evidence other than the mere allegation
of the latter.
The misdeeds committed by respondent were not based on acts as
presented by NBI.

It is therefore recommended that further investigation by NBI be


conducted in order to determine the veracity of the charges."

The Memorandum was recommended for approval by Acting Director


Gualberto J. de la Llana and approved on March 22, 1990 by Ombudsman
Vasquez. 8
On September 19, 1990, the NBI recommended the prosecution of petitioner
based on Abao's complaint. 9 Thus, on May 14, 1991, GIO II Caraos formally
directed petitioner to file his counter-affidavit and controverting evidence to the
complaint of May 6, 1988, with a warning that his failure "to do so shall be
construed as a waiver of his right to be heard and the preliminary investigation
shall proceed accordingly." 10 On petitioner's motion, the Ombudsman granted
him until September 7, 1991 within which to file his counter-affidavit. On
September 7, 1991, petitioner sought another extension within which to file his
counter-affidavit. 11

Petitioner filed his counter-affidavit on October 25, 1991. 12 He asserted that he


removed some employees from the lottery to avoid undue injury to the
government. He denied that he hired or caused to be hired his brother and sister
in the "experimental lottery research" as they maintained their affairs without his
interference. He also denied demanding or receiving any amount from Abao or
from the lottery operator as it was impossible for him to demand bribe money in
the form of a check. He claimed that Abao's complaint was a desperate effort to
malign him. 13
On November 29, 1991, GIO II Caraos issued a Resolution stating that:
"Evaluating the complaint, as well as the controverting evidence
presented by the respondent, we find prima facie case against herein
respondent for Violation of R.A. 3019.
"At the outset, it must be stressed that in a preliminary investigation, it is
not required that all reasonable doubts on the accused's guilt must be
removed; what is required only is that evidence be sufficient to establish
probable cause that the accused committed the offense charged.
Moreover, as between the positive assertions of complainant Abao and

the mere denials of the respondent, the former deserves more credence
as it is acknowledged that the same has greater evidentiary value than
the latter. Probable cause has been established by the clear and positive
testimonies of the complainant and his witnesses pointing to the herein
respondent as responsible for various acts relative to the operation of the
lottery in Violation of the Anti-Graft law specifically Sec. 3 (a), (b), (c), (h)
and (k). Such finding is duly supported by the recommendation of the
NBI report which also recommended the filing of proper criminal charge
against the respondent.
"Furthermore, most of the allegations of the respondents as contained in
his counter-affidavit are matters of defense which can be best ventilated
in court during trial. In fact, the other allegations of respondents which
are mere insinuations as to the motive of the complainant in filing the
case, only deserve scant consideration.
DcCEHI

"Wherefore, all legal premises considered, let an information be filed


before the proper court against respondent Raro.
"SO RESOLVED." 14

Director Cesar T. Palana recommended approval of the above Resolution on


December 5, 1991. 15 However, on January 27, 1992, Assistant Ombudsman
Abelardo L. Aportadera, Jr., who reviewed the Resolution, recommended its
disapproval and the dismissal of the complaint, on the ground that the NBI report
was "based merely on testimonial evidence" that "would not suffice to establish
a prima facie case" against herein petitioner. He averred that more than oral
evidence should support the charge of extortion and that petitioner's witnesses
had amply clarified the charge of nepotism. 16
On June 11, 1992, Special Prosecution Officer 1 (SPO 1) Wendell E. BarrerasSulit, after reviewing the Resolution of GIO II Caraos, issued a Memorandum
finding that said Resolution "did not fully discuss the evidence that would support
the particular charges recommended to be filed" against petitioner. After
analyzing each of the charges, SPO 1 Barreras-Sulit concluded that petitioner
should only be charged with violation of Section 3(b) of R.A. 3019 as there
was prima facie case that petitioner received the total amount of P116,000.00 on

four different occasions. Attached to the Memorandum was the information


charging petitioner with violation of Section 3 (b) of Republic Act No. 3019. 17
SPO 1 Barreras-Sulit's Memorandum was approved by Deputy Special
Prosecutor Jose De G. Ferrer, Special Prosecutor Aniano A. Desierto and
Ombudsman Vasquez. 18Hence, on July 2, 1992, an information dated May 19,
1992 prepared by SPO 1 Barreras-Sulit was filed with the
Sandiganbayan, 19 accusing petitioner with violation of Section 3 (b) of Republic
Act No. 3019 committed as follows:
"That on or about the period from October, 1987 to January 1988, in
Daet, Camarines Norte, Manila and Quezon City, Philippines, and within
the jurisdiction of this Honorable Court, the above named accused, a
public officer being then the Corporate Secretary and Acting Department
Manager of the Special Projects Department of the Philippine Charity
Sweepstakes Office (PCSO), San Marcelino, Malate, Metro Manila,
tasked to monitor and oversee the Small Town Lottery Experimental
Project of the PCSO in certain areas including Camarines Norte, taking
advantage of his said public position and while in the performance of his
official duties as such, did then and there, wilfully, unlawfully and
criminally demand and receive on four different occasions the amount
totalling to ONE HUNDRED SIXTEEN THOUSAND SEVEN HUNDRED
NINETY-NINE PESOS and NINETY-NINE CENTAVOS (P116,799.99),
Philippine Currency, from Mr. Luis "Bing" F. Abao, Provincial Manager
of the STL operations in Camarines Norte, as his share in the net
proceeds of the said STL which was not authorized under the law but
which amount was given to and received by him in his capacity as
overseer and monitoring arm of the PCSO in the Small Town Lottery
operation in Camarines Norte.
"CONTRARY TO LAW."

On July 6, 1992, the Sandiganbayan issued an order for petitioner's arrest and
fixed bail in the amount of P12,000.00. 20 On the same day, petitioner applied for
bail before the Regional Trial Court of Cabanatuan City, Branch 26, 21 which
forthwith approved the application. 22 On July 8, 1992, petitioner filed with the
Sandiganbayan a manifestation and motion for the lifting of the order of

arrest. 23 Accordingly, the Sandiganbayan recalled its order of arrest the following
day. 24
Petitioner subsequently filed with the Sandiganbayan a motion for the
reinvestigation of the Resolution of the Ombudsman dated 11 June
1992, 25 alleging that:
1. The "prejudicial and indecent delay in the preliminary investigation"
violated his rights to due process of law and to speedy disposition of the
case because while the complaint was filed on May 20, 1988, the
information against him was filed more than four (4) years later.
2. Despite the delay in filing the information, hastiness attended the
proceedings in that he was not furnished a copy of the resolution on
which the information was based. Moreover, the information was dated
May 19, 1992 or even before the resolution that gave rise to it was
finished on June 11, 1992. There was a need for a reinvestigation to
protect him from hasty, malicious and oppressive prosecution.
3. The resolution of June 11, 1992 was a "picture of legal and factual
infirmities." While no evidence supported the complaint other than the
reports of NBI Agents Duka and Lasala and the affidavits dated June 30,
1988 of Rene Ruidera and Ben Galeon, these bases for the information
were "worthless pieces of documents." Moreover, he was not furnished a
copy of the NBI report showing that he received P116,000.00 from the
proceeds of the STL operation, and the NBI never conducted a
reinvestigation as required by NBI Director Carpio.
4. The complaint was based solely on the affidavit of Abao and those of
Ruidera and Galeon who were mere hearsay witnesses. The allegations
in the complaint were facts to be established (factum probandum)
requiring further evidentiary facts (factum probans). The only source of
the charges, therefore, were the bare assertions of Abao who was not a
credible witness. He was "consumed by vengeance," because petitioner
had him audited for "unexplained disposition" of STL funds during
Abao's campaign for mayor of Daet. Hence, to get back at petitioner,
Abao circulated "fabrications and fairy tale" against him even before the
Sandiganbayan.
caHIAS

After hearing, the Sandiganbayan granted the petitioner's motion for


reinvestigation in a Resolution dated July 28, 1992, and ordered the defense to
file a motion for reconsideration and/or reinvestigation with the Office of the
Ombudsman within ten (10) days from July 29, 1992, and the prosecution to
conduct such reinvestigation and to terminate it on or before August 31, 1992.
Likewise, the Sandiganbayan required the prosecution to furnish petitioner a copy
of the NBI Report of September 18, 1990, and reset the arraignment to
September 8, 1992 at 8:30 a.m. The Sandiganbayan's directives were based on
the following findings:
"We have gone over the grounds and arguments alleged in accused's
aforesaid motion and We do not subscribe to the claim that there was
prejudicial and indecent delay in the preliminary investigation,
considering that the initial complaint filed by complainant Luis F. Abalo
(sic) on May 20, 1988 had been referred to the National Bureau of
Investigation on July 1, 1988 and the report of the latter agency was only
submitted on September 18, 1990. Thereafter, Graft Investigator II
Theresa M. Caraos conducted a preliminary investigation, wherein
accused submitted his counter-affidavit denying the charges levelled
against him, culminating in the issuance of a resolution dated November
29, 1991, recommending the filing of the proper information with this
Court.
"The Caraos' (sic) resolution was reviewed by proper officials in the
Office of the Ombudsman, the latest of which was made by Special
Prosecution Officer 1 Wendell E. Barreras-Sulit, who adopted the
recommendation for the filing only of a charge under Section 3(b) of R.A.
3019 in her resolution of June 11, 1992. However, the information, as
prepared by Atty. Barreras-Sulit, is dated May 19, 1992 and approved by
Ombudsman Conrado M. Vasquez on June 25, 1992 and filed with this
Court on July 2, 1992. On this score, We find nothing irregular with
respect to the afore-cited dates, despite the contention of the accused
that there was "hastiness despite delay." Moreover, the doctrines
enunciated in Tatad (159 SCRA 70) are not entirely on all fours with the
situation depicted in the case at bar, having been modified
inLecaroz (G.R. Nos. 918223-35, promulgated June 7, 1990)
and Gonzales (199 SCRA 298).

"On the other hand, there appears to be some semblance of validity to


accused's other grounds, to wit, that he was not furnished a copy of the
NBI report during the preliminary investigation, hence, he was not able to
refute the allegations contained therein and (2) (sic) that he was not
furnished a copy of the resolution upon which the information was based
before the filing thereof, thus, he was deprived of his right to file a motion
for reconsideration. Under Administrative Order No. 09, issued by the
Ombudsman on October 15, 1991, which amended Rule II, Section 7
of Rep. Act No. 6770 (sic), a respondent has five (5) days from receipt of
the resolution finding aprima facie case against him within which to file a
motion for reconsideration. Likewise, under Section 7 of Rule
II, supra, he may move for a reinvestigation based on errors or
irregularities during the preliminary investigation or on newly-discovered
evidence." 26

Petitioner filed with the Sandiganbayan a motion for extension of time to file his
motion for reinvestigation, 27 which was granted on August 13, 1992. 28
On August 12, 1992, complainant Abao wrote a letter addressed to Special
Prosecution Officer III (SPO III) Roger Berbano, Sr. of the Sandiganbayan,
alleging that:
(1) Petitioner was not able to refute the charges against him of violation
of Section 3 (a), (b), (c), (h) and (k) of Republic Act No. 3019 "except to
discredit the truth about the P116,000.00 he demanded and got from
me";
(2) Petitioner admitted in a press conference the existence of a check in
the amount of P51,799.00 but his claim that it bounced was not true
because the check with Atty. Reynaldo Ilagan as payee was in his
(Abao's) possession;
(3) The "bribe money" was good to the "exact centavo" because it was
25% of the daily gross earnings of the lottery;
(4) He was not a dismissed employee of ELMEC because he financed
and managed the STL operation "upon the prodding of PCSO through

Atty. Raro" and he received commissions and percentages as late as


March 1988 as shown by vouchers signed by Marissa Raro-Remigio;

caCSDT

(5) His candidacy for mayor in the January 18, 1988 elections was never
affected by allegations of mismanagement; he stayed as the general
manager of ELMEC until March 1988; and
(6) The findings of Senator Maceda of the Senate Committee on Games
and Amusement that the operation of the STL was the source of
corruption and "milking cow of corrupt PCSO officials" and hence, its
discontinuance upon the order of the President, was the "best evidence
of corruption" perpetrated by petitioner.

On August 14, 1992, SPO III Berbano issued an Order stating that the grounds
and issues raised in petitioner's motion for reinvestigation were "clearly matters of
defense to be ventilated during the trial of the case on the merits." Hence, he
recommended the denial of the motion for reinvestigation, which recommendation
was approved by the Ombudsman, Conrado M. Vasquez, on August 26, 1992. 29
In the meantime, on August 18, 1992, petitioner filed with the Office of the
Ombudsman a motion for the reconsideration of the Ombudsman's Resolution of
June 11, 1992. He asserted that SPO 1 Barreras-Sulit based her Resolution on
the NBI Report of September 18, 1990 and the affidavits dated June 30, 1988 of
Rene Ruidera and Ben Galeon, all of which had no evidentiary value because
they are hearsay and basically based on information furnished them by Abao.
According to petitioner, the said Report was incomplete and inconclusive
because the findings therein needed further investigation. Reiterating his
arguments that factum probans is required during a preliminary investigation and
that Abao is not a credible witness, petitioner contended that he should be
spared from the trouble, expense and anxiety as well as the stigma resulting from
an open and public accusation of a crime. 30
Subsequently, petitioner also filed with the Tanodbayan a "Motion for a Last
Review" of the Special Prosecutor's Order of August 14, 1992. He alleged that
the Office of the Special Prosecutor (OSP) failed to take into consideration the
very motion for reconsideration that should have been the subject of that Order.
He contended that the OSP might not have been aware of the motions he filed for
extension of time within which to file the motion for reconsideration, and the

OSP's preparation of the Order of August 14, 1992 before it received the motion
for reconsideration constituted a gross procedural defect. Petitioner further
asserted that "the minimum requirement for a meaningful determination of
'probable cause' should take into consideration the strength of the evidence of
the accused and the inherent baselessness of the complainant's." He thus prayed
that the Resolution of June 11, 1992 recommending the filing of an information
against him be reversed, the complaint dismissed, and the information filed with
the Sandiganbayan withdrawn. 31
The scheduled arraignment of petitioner on September 8, 1992 was cancelled
considering that the reinvestigation ordered by the Sandiganbayan had "not yet
been terminated." The Sandiganbayan granted SPO III Berbano a twenty-day
extension within which to resolve the motion for reconsideration, and reset the
arraignment for October 2, 1992. 32
On September 24, 1992, SPO III Berbano denied petitioner's motion for
reconsideration and the motion for a last review, upon a finding that the
November 21, 1991 Resolution of GIO II Caraos and the Memorandum of SPO 1
Barreras-Sulit, both of which bore the imprimatur of the Ombudsman, "simply
signify that there exists aprima facie case or probable cause" against petitioner.
Hence, he reiterated that the issues raised were evidentiary in nature and should
be resolved by the Sandiganbayan. 33
Petitioner did not appear at his arraignment on October 2, 1992. Hence, upon
motion of the prosecution, a warrant for his arrest was issued. However,
petitioner's counsel arrived late and undertook to bring the proper medical
certificate showing that petitioner was ill. The Sandiganbayan reset the
arraignment for October 12, 1992. 34 Later, petitioner sought the reconsideration
of the Order for his arrest on the ground that he was then suffering from viral
influenza and submitted a medical certificate to that effect. 35 The Sandiganbayan
considered that incident closed and terminated, and directed that the arraignment
should proceed on October 12, 1992.36
On that date, petitioner filed with the Sandiganbayan a motion to quash the
information, 37 on the ground that the court did not acquire jurisdiction in view of
violations of accused's constitutional rights during the preliminary investigation.

He argued that the determination of probable cause by the prosecuting officer


does not preclude the courts from demanding further proof thereon.
Citing Brocka v. Enrile 38 where this Court held that a sham and hastily
conducted preliminary investigation may be lawfully enjoined, petitioner pointed
out the following as indicia of the "falsity and hastiness" of the proceedings before
the Ombudsman:
1. While the Resolution recommending the filing of an information was
issued on June 11, 1992, the information was already prepared on May
19, 1992 thereby showing that said Resolution was no more than a
formality. For petitioner, the situation was akin to "birth preced(ing)
pregnancy."
2. SPO III Berbano denied the motion for reconsideration in his Order of
August 14, 1992 or four (4) days before he filed the motion for
reconsideration on August 18, 1992 thereby showing that the
prosecutors were "hell-bent and determined, come high or low waters,
reason or no reason, to proceed" with their determination to prosecute
him. That procedure also made a mockery of the Sandiganbayan's
Resolution of July 28, 1992 directing the Ombudsman to conduct a
reinvestigation of the case.
3. At the hearing on September 8, 1992, SPO III Berbano confided to his
counsel, Atty. Tomas Z. Roxas, Jr., that on August 14, 1992, Abao had
sent him a letter with the admonition that Berbano should not be like
petitioner's U.P. fraternity brothers who would cover up petitioner's
corrupt and foul deeds. Berbano was pressured by said letter as
indicated by his denial on August 14, 1992 "of the motion for
reconsideration yet to be filed on 18 August 1992." After all, Berbano
was aspiring for the Bench and it was not a "far-flung conclusion" that a
favorable consideration of said motion for reconsideration "may prompt
Abao to accuse him of partiality, Berbano being the UP fraternity
brother of the accused." Berbano in fact admitted to Roxas that he was
being pressured to deny petitioner's motion for reconsideration.
4. Because the crime charged was for violation of Section 3(b)
of Republic Act No. 3019, Abao should be charged as the briber. Abao
never applied for immunity from prosecution because his "testimony"
was uncorroborated on material points. Moreover, while petitioner was

deprived information on what was happening with the case, Abao was
regularly furnished with progress reports thereon. Abao publicized such
reports in Camarines Norte in clear violation of P.D. No. 749 mandating
that proceedings in preliminary investigations shall be strictly confidential
to protect the reputation of the official involved.

Petitioner alleged further that there was a "jurally and constitutionally defective
determination of probable cause" as the complainant and his witnesses were
never personally examined by any of the officers at the Offices of the
Ombudsman and the Special Prosecutor. Neither was the complaint ever sworn
to before them. He argued once again on the failure of the NBI to conduct a
reinvestigation of the case and the hearsay nature of the affidavits of Ruidera and
Galeon.
On November 19, 1992, SPO III Berbano filed an opposition to the motion to
quash, arguing that all the pleadings filed by petitioner were duly considered, as
shown by the Orders of August 14, 1992 and September 24, 1992, both of which
were approved by his superiors, including the Ombudsman. While Atty. Roxas "is
himself a Fraternity Brod of the Alpha Phi Beta Fraternity of UP," Berbano denied
that he was ever pressured into denying petitioner's motion for reconsideration.
Furthermore, Berbano averred that petitioner's ground for the motion to
quash, i.e., that the Sandiganbayan never acquired jurisdiction over an
information that was the result of a highly anomalous preliminary investigation,
may only be "inferred" from Section 3 (b) of Rule 117 of the 1985 Rules on
Criminal Procedure requiring the court to have jurisdiction over the offense
charged or over the person of the accused. By filing a motion to quash, petitioner
was deemed to have admitted the allegations in the information and hence, there
was "only one way clear under the circumstances," and that was to proceed with
the trial of the case. 39

The Sandiganbayan 40 denied the motion to quash for lack of merit. It found "no
persuasive reason to depart from its earlier holding" in the Resolution of July 28,
1992 "that there was no indecent delay in the manner by which the preliminary
investigation was held." It ruled that the long period of time that the preliminary
investigation took was not meant to persecute petitioner. Neither was there clear

and convincing proof that SPO III Berbano succumbed to pressure and
considered petitioner's pleadings with partiality. The Sandiganbayan stressed that
its authority to determine probable cause "is limited only for the purpose of
issuing a warrant of arrest, and not for the purpose of justifying the filing or nonfiling of the Information." It found "no compelling justification to disturb the
findings made by the prosecution of the existence of probable cause that caused
it to file" the information, and that the objections raised by accused-movant on
this point involve matters which could be best passed upon by this Court during
trial on the merits. Thus, the Sandiganbayan set petitioner's arraignment on
November 23, 1992. 41
Petitioner's counsel once again moved for the resetting of the scheduled
arraignment on the ground that he was filing a motion for the reconsideration of
the Resolution denying his motion to quash. The Sandiganbayan gave him fifteen
(15) days within which to file the motion for reconsideration and the prosecution
ten (10) days from receipt of said motion within which to comment. Meanwhile,
the arraignment was reset to January 11, 1993. 42
Petitioner's motion for reconsideration was filed on December 8, 1992. He
reiterated therein that the preliminary investigation conducted was "sham and
attended by irregularities amounting to violation of the very purpose for which
preliminary investigation was instituted in our statute books." He emphasized that
SPO III Berbano was indeed pressured into denying his motions because of his
application for judgeship. He claimed that the Sandiganbayan erred when it ruled
that the "court's power to examine the conclusions drawn by the prosecutor after
the preliminary investigation is only for the purpose of determining the existence
of just and proper cause to issue a warrant of arrest." Relying on the ruling
in Salonga v. Cruz Pao 43 wherein this Court reviewed the prosecution's findings
of a prima facie case against Salonga, petitioner averred that it is infinitely more
important than conventional adherence to general rules of criminal procedure to
respect the citizen's right to be free not only from arbitrary arrest and punishment
but also from unwarranted and vexatious prosecution.
The prosecution did not file a comment or opposition to the motion for
reconsideration. On January 5, 1993, the Sandiganbayan issued a Resolution
denying said motion for lack of merit and setting petitioner's arraignment on

January 11, 1993. The Sandiganbayan held that petitioner's allegations that the
preliminary investigation was sham and that SPO III Berbano was partial are not
supported by competent proof. Brushing aside said allegations as mere
speculations, the Sandiganbayan found no reason to depart from its earlier
conclusion that there was no compelling justification to disturb the prosecution's
finding of a probable cause. 44
Hence, the instant petition for certiorari and prohibition with application for the
issuance of a temporary restraining order to enjoin respondents Sandiganbayan,
the Ombudsman and the People of the Philippines from proceeding with Criminal
Case No. 17800. On February 4, 1993, this Court denied the prayer for
temporary restraining order and required respondents to comment on the
petition. 45 Petitioner's arraignment proceeded on February 19, 1993, where he
entered a plea of not guilty to the crime charged. 46 On September 21, 1993,
after respondents filed their comment and petitioner his reply thereto, this Court
gave due course to the instant petition and required the parties to file their
respective memoranda. 47 Meanwhile, the Sandiganbayan suspended
proceedings in Criminal Case No. 17800 on account of the pendency of the
instant petition. 48
Petitioner alleges in this petition for certiorari and prohibition that: (a) the
determination of "probable cause" in Criminal Case No. 17800 was
constitutionally defective because the Ombudsman, before filing the information,
and the Sandiganbayan, before issuing the warrant of arrest, failed to examine
the complainant under oath; (b) the preliminary investigation was hasty,
malicious, persecutory and based on inadmissible evidence thereby violating his
right to due process of law, and (c) the unexplained 4-year delay in resolving the
preliminary investigation, coupled with the favorable consideration of the
complaint albeit manifestly false and politically motivated, violated his
constitutional rights to speedy trial and to due process of law. 49
At the outset, it is settled that a special civil action for certiorari and prohibition is
not the proper remedy to assail the denial of a motion to quash an information.
This is succinctly underscored in Quion v. Sandiganbayan as follows:
"The special civil action of certiorari or prohibition is not the proper
remedy against interlocutory orders such as those assailed in these

proceedings; i.e., an order denying a motion to quash the information,


and one declaring the accused to have waived his right to present
evidence and considering the case submitted for decision. As pointed
out by the Office of the Solicitor General (citing Nierras v. Dacuycuy, 181
SCRA 1 [1990]), and Acharon v. Purisima, et al., 13 SCRA 309; People
v. Madaluyo, 1 SCRA 1990), the established rule is that when such an
adverse interlocutory order is rendered, the remedy is not to resort
forthwith to certiorari or prohibition, but to continue with the case in due
course and, when an unfavorable verdict is handed down to take an
appeal in the manner authorized by law. It is only where there are special
circumstances clearly demonstrating the inadequacy of an appeal that
the special civil action of certiorari or prohibition may exceptionally be
allowed. The Court has been cited to no such special circumstances in
the cases at bar." 50

In the case at bar, there is no showing of such special circumstances. The


jurisdiction of the Ombudsman over the complaint is not even questioned by
petitioner 51 as his motion to quash the information is based on the allegedly
"highly anomalous preliminary investigation" that amounted to a denial of his
rights to due process and to speedy disposition of the charge against him.
However, an incomplete preliminary investigation 52 or the absence
thereof 53 may not warrant the quashal of an information. In such cases, the
proper procedure is for the Sandiganbayan to hold in abeyance any further
proceedings conducted and to remand the case to the Ombudsman for
preliminary investigation or completion thereof. However, granting arguendo that
the preliminary investigation was sham and highly anomalous in this case, that
defect was cured when the above procedure was in fact observed by the
Sandiganbayan. Hence, on the issue alone of the propriety of the remedy sought
by petitioner, the instant petition for certiorari and prohibition must fail. However,
in the interest of justice, we shall resolve the issue of whether or not the
Ombudsman conducted the preliminary investigation erroneously and irregularly.
Petitioner contends that both the Ombudsman and the Sandiganbayan failed to
examine the complainant personally to determine the existence of probable
cause that would warrant the filing of an information against him and,
consequently, the issuance of a warrant of arrest. He rues the fact that the

complaint filed by Abao against him was subscribed to before an ordinary notary
public and that the sworn statements of witnesses against him were sworn to
before a provincial fiscal, not deputized by the Ombudsman, but acting merely as
an officer authorized to administer oaths. 54
Article XI, Section 12 of the 1987 Constitution, which was in force and effect
when Abao filed the complaint against petitioner, provides:
"Sec. 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or
manner against public officials or employees of the Government, or any
subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result thereof." (Italics
supplied.)
IEaCDH

The mandate to act promptly on complaints filed in any form or manner against
officers or employees of the Government is restated in Section 13 of Republic Act
No. 6770 ("The Ombudsman Act of 1989"), approved into law on November 17,
1989. The same authority to act on complaints "in any form, either verbal or in
writing," is also reiterated in Rule 1, Section 3 of the Rules of Procedure of the
Office of the Ombudsman, which is embodied in Administrative Order No.
07 dated April 10, 1990, issued pursuant to the rule-making power of the
Ombudsman under Section 13 (8) of the 1987 Constitution and Sections 18, 23
and 27 of "The Ombudsman Act of 1989."
In accordance with the foregoing constitutional and statutory provisions, this
Court, in Diaz v. Sandiganbayan, 55 held valid charges that were not made in
writing or under oath. This Court found as sufficient basis the Solicitor General's
sworn testimony at the joint fact-finding investigation conducted by the Senate
Blue Ribbon Committee and the Ombudsman for the latter to conduct an
investigation. On the other hand, in Olivas v. Office of the Ombudsman, 56 where
the complaint against petitioner was initiated by anonymous letters, this Court
held that the PCGG, to whom the letters were addressed and who became the
complainant in the proceedings, should have reduced the evidence it had
gathered into affidavits. The submission of affidavits, provided for in Rule II,
Section 4 (a) of Administrative Order No. 07, is also required by due process in

adversary proceedings. 57 However, the submission of affidavits is not mandatory


and jurisdictional. Rule 1, Section 3 of the same administrative order merely
states that it is " preferable" that the complaint "be in writing and under oath" for
its speedier disposition. Clearly in consonance with the provision that the
complaint may be in any form, the Ombudsman Rules of Procedure does not
require that the complaint be subscribed only before the Ombudsman or his duly
authorized representative. In any event, the issue of the sufficiency in form of the
complaint was rendered moot and academic by petitioner's filing of a counteraffidavit wherein he controverted the allegations in the complaint. 58

The referral of the complaint to the NBI does not mean that the Ombudsman
abdicated its constitutional and statutory duty to conduct preliminary
investigations. Article XI, Section 13 of the 1987 Constitution vests in the
Ombudsman the powers, functions and duties to:
"(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite any
act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith." (Italics supplied.)

Thus, by referring Abano's complaint to the NBI, the Ombudsman did not thereby
delegate the conduct of the preliminary investigation of the case to that
investigative bureau. What was delegated was only the fact-finding function,
preparatory to the preliminary investigation still to be conducted by the
Ombudsman. 59 Notably, under Rule II, Section 2 (d) of Administrative Order No.
07, the investigating officer has the option to forward the complaint to the
appropriate office or official for fact-finding investigation. While Administrative
Order No. 07 took effect in mid-1990 60 or after the complaint in this case was
referred to the NBI, the inclusion of that constitutionally sanctioned practice in the

Ombudsman Rules of Procedure lends validity to the Ombudsman's action in this


case.
Under the circumstances of this case, the Ombudsman's failure to personally
administer oath to the complainant does not mean that the Ombudsman did not
personally determine the existence of probable cause to warrant the filing of an
information.
Neither did the Sandiganbayan violate petitioner's right to due process of law by
its failure to personally examine the complainant before it issued the warrant of
arrest. In a preliminary examination for the issuance of a warrant of arrest, a court
is not required to review in detail the evidence submitted during the preliminary
investigation. What is required is that the judge "personally evaluates the report
and supporting documents submitted by the prosecution in determining probable
cause." 61 In the absence of evidence that the Sandiganbayan did not personally
evaluate the necessary records of the case, the presumption of regularity in the
conduct of its official business shall stand.
At this juncture, it is apropos to state once again the nature of a preliminary
investigation. In Cruz, Jr. v. People, the Court said:
"It must be stressed that a preliminary investigation is merely
inquisitorial, and it is often the only means of discovering the persons
who may be reasonably charged with a crime, to enable the prosecutor
to prepare his complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a crime
has been committed and whether there is probable cause to believe that
the accused is guilty thereof, and it does not place the persons against
whom it is taken in jeopardy.
"The established rule is that a preliminary investigation is not the
occasion for the full and exhaustive display of the parties' evidence; it is
for the presentation of such evidence only as may engender a wellgrounded belief that an offense has been committed and that the
accused is probably guilty thereof.
xxx xxx xxx

"The main function of the government prosecutor during the preliminary


investigation is merely to determine the existence of probable cause, and
to file the corresponding information if he finds it to be so. And, probable
cause has been defined as the existence of such facts and
circumstances as would excite the belief, in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted." 62

In determining probable cause, an inquiry into the sufficiency of evidence to


warrant conviction is not required. It is enough that it is believed that the act or
omission complained of constitutes the offense charged. The trial of a case is
conducted precisely for the reception of evidence of the prosecution in support of
the charge. 63 In the performance of his task to determine probable cause, the
Ombudsman's discretion is paramount. Thus, in Camanag v. Guerrero, this Court
said:
". . . .(S)uffice it to state that this Court has adopted a policy of noninterference in the conduct of preliminary investigations, and leaves to
the investigating prosecutor sufficient latitude of discretion in the exercise
of determination of what constitutes sufficient evidence as will establish
'probable cause' for filing of information against the supposed
offender." 64

Neither is there merit in petitioner's contention that the preliminary investigation


conducted by the Ombudsman was "hasty, malicious and persecutory" and that it
was based on inadmissible evidence.
Petitioner emphasizes the fact that while the Resolution recommending the filing
of the information was issued on June 11, 1992, the information was already
prepared almost a month earlier on May 19, 1992. 65 This may show oversight in
the handling of the documents pertinent to this case considering that the date of
the information should have been corrected to conform to the date of the
resolution where its filing was approved by the prosecutor's superiors. However,
such faux pas did not violate petitioner's substantive rights. The error in the date
of the information did not affect its validity, especially since the recommendation
to file it was with the imprimatur of the Ombudsman himself.

With respect to the denial by SPO III Berbano of the motion for reinvestigation on
August 14, 1992 or prior to petitioner's filing of his motion for reconsideration on
August 18, 1992, the record shows that petitioner filed two motions for extension
of time to file the motion for reinvestigation without the knowledge of SPO III
Berbano. What the latter resolved on August 14, 1992 was petitioner's motion for
reinvestigation before the Sandiganbayan. Likewise, petitioner's allegation that
SPO III Berbano was not an impartial prosecutor cannot be given credence for
lack of sufficient proof thereon. SPO III Berbano is presumed to have issued the
Resolution denying the motion for reinvestigation in the regular performance of
his duties.
Neither is there factual support to petitioner's claim that the 4-year delay in the
completion of the preliminary investigation is unexplained. The record clearly
shows that the Ombudsman exerted utmost effort to determine the veracity of
Abao's allegations against petitioner. That it took the NBI almost two years to
complete its report on the matter does not mean that petitioner's right to speedy
disposition of the charge was brushed aside. If delay may be imputed in the
proceedings, the same should be reckoned only from October 25, 1991 when
petitioner filed his counter-affidavit. 66 Thirty-six (36) days thereafter or on
November 29, 1991, GIO II Caraos issued the Resolution recommending the
filing of the information. Further delay, if indeed it could be called one, was
caused by the review of GIO II Caraos' recommendation by her superiors. Some
seven and a half months later, or on June 11, 1992, the information was filed with
the Sandiganbayan. There is thus no reason to conclude that the Ombudsman
ran roughshod over the petitioner's right to a speedy preliminary investigation. In
the determination of whether or not that right has been violated, the factors that
may be considered and weighed are "the length of delay, the reasons for such
delay, the assertion or failure to assert such right by the accused, and the
prejudice caused by the delay." 67
The length of time it took before the conclusion of the preliminary investigation
may only be attributed to the adherence of the Ombudsman and the NBI to the
rules of procedure and the rudiments of fair play. The allegations of Abao's
complaint had to be verified; the Ombudsman did not believe the same hook, line
and sinker. Recently, the Court held that while the Rules of Court provides a ten-

day period from submission of the case within which an investigating officer must
come out with a resolution, that period of time is merely directory. Thus:
"The Court is not unmindful of the duty of the Ombudsman under
the Constitution and Republic Act No. 6770 to act promptly on
Complaints brought before him. But such duty should not be mistaken
with a hasty resolution of cases at the expense of thoroughness and
correctness. Judicial notice should be taken of the fact that the nature of
the Office of the Ombudsman encourages individuals who clamor for
efficient government service to freely lodge their Complaints against
wrongdoings of government personnel, thus resulting in a steady stream
of cases reaching the Office of the Ombudsman." 68

Finally, there is no ground to give credence to petitioner's claim that the


complainant should be charged as a briber on account of his admission that he
gave petitioner some sum of money; or that evidence presented during the
preliminary investigation, specifically the affidavits of witnesses, were hearsay
and inadmissible. As we stated earlier, this Court cannot supplant the
Ombudsman's discretion in the determination of what crime to charge an
accused.
All told, this Court finds no reason to reverse the assailed Resolutions of the
Sandiganbayan. Petitioner's insinuation that he was subjected to the proceedings
before the Ombudsman and the Sandiganbayan for politically motivated reasons,
has not been established with sufficient evidence. In the absence of any
imputation that public respondents were impelled by ill-motive in filing the case
against him, it is presumed that there is no such motive and that public
respondents merely filed the case to correct a public wrong. 69

WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for
lack of merit. The assailed Resolutions of the Sandiganbayan are hereby
AFFIRMED. The Sandiganbayan is DIRECTED to proceed with deliberate
dispatch in the disposition of Criminal Case No. 17800.
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr.,
JJ., concur.
|||

(Raro v. Sandiganbayan, G.R. No. 108431, [July 14, 2000], 390 PHIL 917-949)

10.
[G.R. No. 85468. September 7, 1989.]
QUINTIN S. DOROMAL, petitioner, vs. SANDIGANBAYAN,
OMBUDSMAN AND SPECIAL PROSECUTOR, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
WHEN A SECOND PRELIMINARY INVESTIGATION IS PROPER. A new
preliminary investigation of the charge against the petitioner is in order not only
because the first was a nullity ("a dead limb on the judicial tree which should be
lopped off and wholly disregarded" Anuran vs. Aquino, 38 Phil. 29) but also
because the accused demands it as his right. Moreover, the charge against him
had been changed, as directed by the Ombudsman.
2. ID.; ID.; ID.; WHEN THE CHARGE HAS BEEN CHANGED; RIGHT OF THE
ACCUSED IS SUBSTANTIAL. The petitioner's right to a preliminary
investigation of the new charge is secured to him by the following provisions of
Rule 112 of the 1985 Rules on Criminal Procedure. That right of the accused is
"a substantial one." Its denial over his opposition is a "prejudicial error, in that it
subjects the accused to the loss of life, liberty, or property without due process of
law" (U.S. vs. Marfori, 35 Phil. 666).
3. ID.; ID.; ID.; ACCUSED ALONE MAY WAIVE THE RIGHT. The Solicitor
General's argument that the right to a preliminary investigation may be waived
and was in fact waived by the petitioner, impliedly admits that the right exists.

Since the right belongs to the accused, he alone may waive it. If he demands it,
the State may not withhold it.
4. ID.; ID.; ID.; ABSENCE OF, IS NOT A GROUND TO QUASH THE
COMPLAINT; CASE MUST BE REMANDED FOR PRELIMINARY
INVESTIGATION. As the absence of a preliminary investigation is not a
ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court),
the proceedings upon such information in the Sandiganbayan should be held in
abeyance and the case should be remanded to the office of the Ombudsman for
him or the Special Prosecutor to conduct a preliminary investigation. Thus did We
rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA 349
and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4.
5. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT;
PRESENCE OF A SIGNED DOCUMENT, NOT A SINE QUA NON FOR THE
PETITIONER TO BE CHARGED. The Sandiganbayan in its order of August
19, 1988 correctly observed that "the presence of a signed document bearing the
signature of accused Doromal as part of the application to bid . . . . is not a sine
qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his
Memorandum/Clearance to the Special Prosecutor, that the petitioner "can
rightfully be charged . . . with having participated in a business which act is
absolutely prohibited by Section 13 of Article VII of the Constitution" because "the
DITC remained a family corporation in which Doromal has at least
an indirect interest." (pp. 107-108, Rollo)
6. CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; PARTICIPATION OF
PUBLIC OFFICIALS IN ANY BUSINESS; BAN IS SIMILAR TO THE
PROHIBITION IN THE CIVIL SERVICE LAW. Section 13, Article VII of
the 1987 Constitution provides that "the President, Vice-President, the members
of the Cabinet and their deputies or assistants shall not . . . during (their) tenure, .
. . directly or indirectly . . . participate in any business." The constitutional ban is
similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar.
24) that "pursuit of private business . . . without the permission required by Civil
Service Rules and Regulations" shall be a ground for disciplinary action against
any officer or employee in the civil service.

7. ID.; ID.; ID.; VIOLATION OF PROHIBITION COMMANDS SUSPENSION


FROM OFFICE; LEAVE OF ABSENCE IS NOT A BAR TO PREVENTIVE
SUSPENSION. Since the petitioner is an incumbent public official charged in a
valid information with an offense punishable under the Constitution and the laws
(RA 3019 and PD 807), the law's command that he "shall be suspended from
office" pendente lite must be obeyed. His approved leave of absence is not a bar
to his preventive suspension for as indicated by the Solicitor General, an
approved leave, whether it be for a fixed or indefinite period, may be cancelled or
shortened at will by the incumbent.
8. ID.; CIVIL SERVICE; PREVENTIVE SUSPENSION; MAXIMUM PERIOD IS 90
DAYS. As we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a
preventive suspension for an indefinite period of time, such as one that would last
until the case against the incumbent official shall have been finally terminated,
would "outrun the bounds of reason and result in sheer oppression" and a denial
of due process. The petitioner herein is no less entitled to similar protection.
Since his preventive suspension has exceeded the reasonable maximum period
of ninety (90) days provided in Section 42 of the Civil Service Decree of the
Philippines (P.D. 807), it should now be lifted.
DECISION
GRIO-AQUINO, J :
p

Brought up for review before this Court is the order dated August 19, 1988 of the
Sandiganbayan denying petitioner's motion to quash the information against him
in Criminal Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin
S. Doromal," and the Sandiganbayan's order suspending him from office during
the pendency of the case.
In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a
preliminary investigation of the charge against the petitioner, Quintin S. Doromal,
a former Commissioner of the Presidential Commission on Good Government
(PCGG), for violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec.

3(h), in connection with his shareholdings and position as president and director
of the Doromal International Trading Corporation (DITC) which submitted bids to
supply P61 million worth of electronic, electrical, automotive, mechanical and
airconditioning equipment to the Department of Education, Culture and Sports (or
DECS) and the National Manpower and Youth Council (or NMYC).
On January 25, 1988, with the approval of Special Prosecutor Raul Gonzales,
Caoili filed in the Sandiganbayan an information against the petitioner (Criminal
Case No. 12766) alleging:
"That in or about the period from April 28, 1986 to October 16, 1987, in
Metro Manila, Philippines and within the Jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then
Commissioner of the Presidential Commission on Good Government, did
then and there wilfully and unlawfully have direct or indirect financial
interest in the Doromal International Trading Corporation, an entity which
transacted or entered into a business transaction or contract with the
Department of Education, Culture and Sports and the National
Manpower and Youth Council, both agencies of the government which
business, contracts or transactions he is prohibited by law and the
constitution from having any interest." (pp. 246-247, Rollo; emphasis
supplied.)

The petitioner filed a petition for certiorari and prohibition in this Court
questioning the jurisdiction of the "Tanodbayan" to file the information without the
approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R.
No. 81766, entitled "Doromal vs. Sandiganbayan")
On June 30, 1988, this Court annulled the information in accordance with its
decision in the consolidated cases of Zaldivar vs. Sandiganbayan, G.R. Nos.
79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160
SCRA 843), where it ruled that:
". . . the incumbent Tanodbayan (called Special Prosecutor under
the 1987 Constitution and who is supposed to retain powers and duties
NOT GIVEN to the Ombudsman) is clearly without authority to conduct
preliminary investigations and to direct the filing of criminal cases with
the Sandiganbayan, except upon orders of the Ombudsman. This right to

do so was lost effective February 2, 1987. From that time, he has been
divested of such authority."

Upon the annulment of the information against the petitioner, the Special
Prosecutor sought clearance from the Ombudsman to refile it.
In a Memorandum dated July 8, 1988, the Ombudsman, Honorable Conrado
Vasquez, granted clearance but advised that "some changes be made in the
information previously filed." (p. 107, Rollo.)
Complying with that Memorandum, a new information, duly approved by the
Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893),
alleging that:
". . . , the above-named accused [Doromal], a public officer, being then a
Commissioner of the Presidential Commission on Good
Government, did then and there wilfully and unlawfully, participate in a
business through the Doromal International Trading Corporation, a family
corporation of which he is the President, and which company
participated in the biddings conducted by the Department of Education,
Culture and Sports and the National Manpower & Youth Council, which
act or participation is prohibited by law and the constitution." (p.
68, Rollo; emphasis supplied.)

On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:
(a) invalid because there had been no preliminary investigation; and
(b) defective because the facts alleged do not constitute the offense charged
(Annex C).
The Sandiganbayan denied the motion to quash in its orders dated July 25, 1988
and August 19, 1988 (Annexes D, N and O, pp. 81, 173 & 179, Rollo).
On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused
Pendente Lite" pursuant to Section 13 of the Anti-Graft and Corrupt Practices
Act (R.A. 3019). Over the petitioner's objection (because the President had
earlier approved his application for indefinite leave of absence as PCGG
commissioner "effective immediately and until final decision of the courts in your
case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988

ordered his suspension pendente lite from his position as PCGG Commissioner
and from any other office he may be holding (Annex T). His motion for
reconsideration of that order was also denied by the Court (Annex Y). Hence, this
petition for certiorari and prohibition alleging that the Sandiganbayan gravely
abused its discretion: (1) in denying the petitioner's motion to quash the
information in Criminal Case No. 12893; and, (2) in suspending the petitioner
from office despite the President's having previously approved his indefinite leave
of absence "until final decision" in this case.

The petitioner contends that as the preliminary investigation that was conducted
prior to the filing of the original information in Criminal Case No. 12766 was
nullified by this Court, another preliminary investigation should have been
conducted before the new information in Criminal Case No. 12893 was filed
against him. The denial of his right to such investigation allegedly violates his
right to due process and constitutes a ground to quash the information.
On the other hand, the public respondent argues that another preliminary
investigation is unnecessary because both old and new informations involve the
same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the AntiGraft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987
Constitution. Moreover, the petitioner allegedly waived the second preliminary
investigation by his failure to comply with the Court's Order dated August 12,
1988 directing him to submit a statement of new or additional facts, duly
supported by photo copies of documents which he would present should a new
preliminary investigation be ordered (Annex H, p. 94, Rollo).
The petition is meritorious. A new preliminary investigation of the charge against
the petitioner is in order not only because the first was a nullity ("a dead limb on
the judicial tree which should be lopped off and wholly disregarded" Anuran
vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right.
Moreover, the charge against him had been changed, as directed by the
Ombudsman.
LLjur

Thus, while the first information in Criminal Case No. 12766 charge that the DITC

"entered into a business transaction or contract with the Department of


Education, Culture and Sports and the National Manpower and Youth
Council, . . . which business, contracts or transactions he [petitioner] is
prohibited by law and the constitution from having any interest." (p.
70, Rollo.)

the new information in Criminal Case No. 12883 alleges that the petitioner:
"unlawfully participate[d] in a business through the Doromal International
Trading Corporation, a family corporation of which he is the President,
and which company participated in the biddings conducted by the
Department of Education, Culture and Sports and the National
Manpower & Youth Council, which act or participation is prohibited by
law and the constitution." (p. 68, Rollo.)

The petitioner's right to a preliminary investigation of the new charge is secured


to him by the following provisions of Rule 112 of the 1985 Rules on Criminal
Procedure:
"SECTION 3. Procedure. . . . no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without a
preliminary investigation having been first conducted. . . ."
"SECTION 7. When accused lawfully arrested without warrant. When
a person is lawfully arrested without a warrant for an offense cognizable
by the Regional Trial Court, the complaint or information may be filed by
the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted; on the basis of the affidavit of
the offended party or arresting officer or person.
"However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rules . . .
"If the case has been filed in court without a preliminary investigation
having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule."

That right of the accused is "a substantial one." Its denial over his opposition
is a "prejudicial error, in that it subjects the accused to the loss of life, liberty,
or property without due process of law" (U.S. vs. Marfori, 35 Phil. 666).
The need to conduct a new preliminary investigation when the defendant
demands it and the allegations of the complaint have been amended, has been
more than once affirmed by this Court:
cdrep

"III. (a) . . ., the Court finds that since the information for alleged violation
of the Anti-Graft Law was filed without any previous notice to petitioners
and due preliminary investigation thereof, and despite the dismissal of
the original charge for falsification as being 'without any factual or legal
basis,' petitioners are entitled to a new preliminary investigation for the
graft charge, with all the rights to which they are entitled under section 1
of Republic Act No. 5180, approved September 8, 1967, as invoked by
them anew from respondent court, viz, the submittal of the testimonies in
affidavit form of the complainant and his witnesses duly sworn to before
the investigating fiscal, and the right of accused, through counsel, to
cross-examine them and to adduce evidence in their defense. In line with
the settled doctrine as restated in People vs. Abejuela (38 SCRA 324),
respondent court shall hold in abeyance all proceedings in the case
before it until after the outcome of such new preliminary investigation.
(Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours).
"The right of the accused not to be brought to trial except when
remanded therefor as a result of a preliminary examination before a
committing magistrate, it has been held is a substantial one. Its denial
over the objections of the accused is prejudicial error in that it subjects
the accused to the loss of life, liberty or property without due process of
law. (Conde vs. Judge of Court of First Instance of Tayabas, 45 Phil.
173, 176.).
"The absence of a preliminary investigation if it is not waived may
amount to a denial of due process. (San Diego vs. Hernandez, 24 SCRA
110, 114.)
"In this jurisdiction, the preliminary investigation in criminal cases is not a
creation of the Constitution; its origin is statutory and it exists and the
right thereto can be invoked when so established and granted by

law. (Mariano Marcos, et al. vs. Roman A. Cruz, 68 Phil. 96; emphasis
supplied.)"

The Solicitor General's argument that the right to a preliminary investigation may
be waived and was in fact waived by the petitioner, impliedly admits that the right
exists. Since the right belongs to the accused, he alone may waive it. If he
demands it, the State may not withhold it.
However, as the absence of a preliminary investigation is not a ground to quash
the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings
upon such information in the Sandiganbayan should be held in abeyance and the
case should be remanded to the office of the Ombudsman for him or the Special
Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano vs.
Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA 349 and more recently
in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:
"The absence of preliminary investigation does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the
information or otherwise render it defective; but, if there were no
preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of
dismissing the information should conduct such investigation, order the
fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted. (See People vs. Gomez,
117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this
case, the Tanodbayan has the duty to conduct the said investigation."

There is no merit in petitioner's insistence that the information should be quashed


because the Special Prosecutor admitted in the Sandiganbayan that he does not
possess any document signed and/or submitted to the DECS by the petitioner
after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly
belies the averment in the information that the petitioner "participated" in the
business of the DITC in which he is prohibited by the Constitution or by law from
having any interest. (Sec. 3-h, RA No. 3019).
The Sandiganbayan in its order of August 19, 1988 correctly observed that "the
presence of a signed document bearing the signature of accused Doromal as
part of the application to bid . . . . is not a sine qua non" (Annex O, p. 179. Rollo),

for, the Ombudsman indicated in his Memorandum/Clearance to the Special


Prosecutor, that the petitioner "can rightfully be charged . . . with having
participated in a business which act is absolutely prohibited by Section 13 of
Article VII of the Constitution" because "the DITC remained a family corporation
in which Doromal has at least an indirect interest." (pp. 107-108, Rollo)
Section 13, Article VII of the 1987 Constitution provides that "the President, VicePresident, the members of the Cabinet and their deputies or assistants shall not .
. . during (their) tenure, . . . directly or indirectly . . . participate in any business."
The constitutional ban is similar to the prohibition in the Civil Service Law (PD
No. 807, Sec. 36, subpar. 24) that "pursuit of private business . . . without the
permission required by Civil Service Rules and Regulations" shall be a ground for
disciplinary action against any officer or employee in the civil service.
On the suspension of the petitioner from office, Section 13 of the Anti-Graft and
Corrupt Practices Act (RA 3019) provides:
"SECTION 13. Suspension and loss of benefits. Any public officer
against whom any criminal prosecution under a valid information under
this Act or under the provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should he be convicted
by final judgment, he shall lose all retirement or gratuity benefits under
any law, but if he is acquitted, he shall be entitled to reinstatement and to
the salaries and benefits which he failed to receive during suspension,
unless in the meantime administrative proceedings have been filed
against him."

Since the petitioner is an incumbent public official charged in a valid information


with an offense punishable under the Constitution and the laws (RA 3019 and PD
807), the law's command that he "shall be suspended from office" pendente
lite must be obeyed. His approved leave of absence is not a bar to his preventive
suspension for as indicated by the Solicitor General, an approved leave, whether
it be for a fixed or indefinite period, may be cancelled or shortened at will by the
incumbent.
LLpr

Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536


(1985), a preventive suspension for an indefinite period of time, such as one that
would last until the case against the incumbent official shall have been finally
terminated, would "outrun the bounds of reason and result in sheer oppression"
and a denial of due process.
In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court
ordered the immediate reinstatement, to his position as chairman of the National
Science Development Board, of a presidential appointee whose preventive
suspension had lasted for nearly seven (7) months. Some members of the Court
held that the maximum period of sixty (60) days provided in Section 35 of
the Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner.
The others believed, however, that period may not apply strictly to cases of
presidential appointees, nevertheless, the preventive suspension shall be limited
to a reasonable period. Obviously, the Court found the petitioner's preventive
suspension for seven (7) months to be unreasonable. The Court stated:
"To adopt the theory of respondents that an officer appointed by the
President, facing administrative charges can be preventively suspended
indefinitely, would be to countenance a situation where the preventive
suspension can, in effect, be the penalty itself without a finding of guilt
after due hearing; contrary to the express mandate of the
Constitution (No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law. [Art. XII,
Sec. 4, Constitution of the Philippines]) and the Civil Service Law (No
officer or employee in the Civil Service shall be removed or suspended
except for cause as provided by law and after due process). . . . In the
guise of a preventive suspension, his term of office could be shortened
and he could, in effect, be removed without a finding of a cause duly
established after due hearing, in violation of the Constitution. . . ."

Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of
our Constitution,that same ruling was applied in Deloso vs. Sandiganbayan, G.R.
Nos. 86899-903, May 15, 1989.
cdll

The petitioner herein is no less entitled to similar protection. Since his preventive
suspension has exceeded the reasonable maximum period of ninety (90) days

provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it
should now be lifted.
WHEREFORE, the petition for certiorari and prohibition is granted. The
Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office
of the Ombudsman for preliminary investigation and shall hold in abeyance the
proceedings before it pending the result of such investigation. The preventive
suspension of the petitioner is hereby lifted. No costs.
SO ORDERED.
|||

(Doromal v. Sandiganbayan, G.R. No. 85468, [September 7, 1989], 258 PHIL

146-146)

11
[G.R. Nos. 217126-27. November 10, 2015.]
CONCHITA CARPIO-MORALES, in her capacity as the
Ombudsman, petitioner, vs. COURT OF APPEALS (SIXTH
DIVISION) and JEJOMAR ERWIN S. BINAY, JR., respondents.
DECISION
PERLAS-BERNABE, J :
p

"All government is a trust, every branch of government is a trust,


and immemorially acknowledged so to be[.]" 1

The Case
Before the Court is a petition for certiorari and prohibition 2 filed on
March 25, 2015 by petitioner Conchita Carpio-Morales, in her capacity as the
Ombudsman (Ombudsman), through the Office of the Solicitor General
(OSG), assailing: (a) the Resolution 3 dated March 16, 2015 of public
respondent the Court of Appeals (CA) inCA-G.R. SP No. 139453, which

granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for
the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order 4 dated March 10, 2015 of the Ombudsman
in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City
Government of Makati, for six (6) months without pay; and (b) the
Resolution 5 dated March 20, 2015 of the CA, ordering the Ombudsman to
comment on Binay, Jr.'s petition for contempt 6 in CA-G.R. SP No. 139504.
Pursuant to the Resolution 7 dated April 6, 2015, the CA issued a writ of
preliminary injunction 8 (WPI) in CA-G.R. SP No. 139453 which further
enjoined the implementation of the preventive suspension order, prompting
the Ombudsman to file a supplemental petition 9 on April 13, 2015.
The Facts
On July 22, 2014, a complaint/affidavit 10 was filed by Atty. Renato L.
Bondal and Nicolas "Ching" Enciso VI before the Office of the Ombudsman
against Binay, Jr. and other public officers and employees of the City
Government of Makati (Binay, Jr., et al.), accusing them of Plunder 11 and
violation of Republic Act No. (RA) 3019, 12otherwise known as "The Anti-Graft
and Corrupt Practices Act," in connection with the five (5) phases of the
procurement and construction of the Makati City Hall Parking Building (Makati
Parking Building). 13
CAIHTE

On September 9, 2014, the Ombudsman constituted a Special Panel of


Investigators 14 to conduct a fact-finding investigation, submit an investigation
report, and file the necessary complaint, if warranted (1st Special
Panel). 15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st
Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al.,
charging them with six (6) administrative cases 17 for Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the
Service, and six (6) criminal cases 18 for violation of Section 3 (e) of RA 3019,
Malversation of Public Funds, and Falsification of Public Documents (OMB
Cases). 19
As to Binay, Jr., the OMB Complaint alleged that he was involved in
anomalous activities attending the following procurement and construction

phases of the Makati Parking Building project, committed during his previous
and present terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013) 20
(a) On September 21, 2010, Binay, Jr. issued the Notice of
Award 21 for Phase III of the Makati Parking Building project to
Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed
the
corresponding
contract 22 on September
28,
2010, 23 without the required publication and the lack of architectural
design, 24 and approved the release of funds therefor in the following
amounts as follows: (1) P130,518,394.80 on December 15,
2010; 25 (2)
P134,470,659.64
onJanuary
19,
2011; 26 (3)
P92,775,202.27 on February
25,
2011; 27 (4)
P57,148,625.51
on March 28, 2011; 28 (5) P40,908,750.61 on May 3, 2011; 29 and (6)
P106,672,761.90 on July 7, 2011; 30
(b) On August 11, 2011, Binay, Jr. issued the Notice of
Award 31 for Phase IV of the Makati Parking Building project to
Hilmarc's,
and
consequently,
executed
the
corresponding
contract 32 on August 18, 2011, 33 without the required publication
and the lack of architectural design, 34 and approved the release of
funds therefor in the following amounts as follows: (1) P182,325,538.97
on October 4, 2011; 35 (2) P173,132,606.91 on October 28,
2011; 36 (3)
P80,408,735.20
on December
12,
2011; 37 (4)
P62,878,291.81 on February 10, 2012; 38 and (5) P59,639,167.90
on October 1, 2012; 39
(c) On September 6, 2012, Binay, Jr. issued the Notice of
Award 40 for Phase V of the Makati Parking Building project to
Hilmarc's,
and
consequently,
executed
the
corresponding
contract 41 on September 13, 2012, 42 without the required publication
and the lack of architectural design, 43 and approved the release of the
funds therefor in the amounts of P32,398,220.05 44 and
P30,582,629.30 45 on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016) 46
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release
of funds for the remaining balance of the September 13, 2012 contract

with Hilmarc's forPhase V of the Makati Parking Building project in the


amount of P27,443,629.97; 47 and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the
remaining balance of the contract 48 with MANA Architecture & Interior
Design Co. (MANA) for the design and architectural services covering
the Makati Parking Building project in the amount of P429,011.48. 49

On March 6, 2015, the Ombudsman created another Special Panel of


Investigators to conduct a preliminary investigation and administrative
adjudication on the OMB Cases (2nd Special Panel). 50 Thereafter, on March
9, 2015, the 2nd Special Panel issued separate orders 51 for each of the OMB
Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits. 52
Before Binay, Jr., et al.'s filing of their counter-affidavits, the
Ombudsman, upon the recommendation of the 2nd Special Panel, issued on
March 10, 2015, the subject preventive suspension order, placing Binay, Jr., et
al. under preventive suspension for not more than six (6) months without pay,
during the pendency of the OMB Cases. 53 The Ombudsman ruled that the
requisites for the preventive suspension of a public officer are
present, 54 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong
given that (1) the losing bidders and members of the Bids and Awards
Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the
publication of bids; and (3) the disbursement vouchers, checks, and official
receipts showed the release of funds; and (b) (1) Binay, Jr., et al. were
administratively charged with Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised
Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay,
Jr., et al.'s respective positions give them access to public records and allow
them to influence possible witnesses; hence, their continued stay in office may
prejudice the investigation relative to the OMB Cases filed against
them. 55 Consequently, the Ombudsman directed the Department of Interior
and Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension order
against Binay, Jr., et al., upon receipt of the same. 56

On March 11, 2015, a copy of the preventive suspension order was sent
to the Office of the City Mayor, and received by Maricon Ausan, a member of
Binay, Jr.'s staff. 57
The Proceedings Before the CA
On even date, 58 Binay, Jr. filed a petition for certiorari 59 before the CA,
docketed as CA-G.R. SP No. 139453, seeking the nullification of the
preventive suspension order, and praying for the issuance of a TRO and/or
WPI to enjoin its implementation. 60 Primarily, Binay, Jr. argued that he
could not be held administratively liable for any anomalous activity
attending any of the five (5) phases of the Makati Parking Building project
since: (a) Phases I and II were undertaken before he was elected Mayor of
Makati in 2010; and (b) Phases III to V transpired during his first term and
that his re-election as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus rendering the
administrative cases against him moot and academic. 61In any event, Binay,
Jr. claimed that the Ombudsman's preventive suspension order failed to
show that the evidence of guilt presented against him is strong,
maintaining that he did not participate in any of the purported
irregularities. 62 In support of his prayer for injunctive relief, Binay, Jr. argued
that he has a clear and unmistakable right to hold public office, having won by
landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges
against him, his suspension from office would undeservedly deprive the
electorate of the services of the person they have conscientiously chosen and
voted into office. 63
DETACa

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the
implementation of the preventive suspension order through the DILG National
Capital Region Regional Director, Renato L. Brion, CESO III (Director
Brion), who posted a copy thereof on the wall of the Makati City Hall after
failing to personally serve the same on Binay, Jr. as the points of entry to the
Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor
of Makati Billy C. Evangelista administered the oath of office on Makati City

Vice Mayor Romulo V. Pea, Jr. (Pea, Jr.) who thereupon assumed office as
Acting Mayor. 64
At noon of the same day, the CA issued a Resolution 65 (dated March
16, 2015), granting Binay, Jr.'s prayer for a TRO, 66 notwithstanding Pea, Jr.'s
assumption of duties as Acting Mayor earlier that day. 67 Citing the case
of Governor Garcia, Jr. v. CA, 68 the CA found that it was more prudent on its
part to issue a TRO in view of the extreme urgency of the matter and
seriousness of the issues raised, considering that if it were established that
the acts subject of the administrative cases against Binay, Jr. were all
committed during his prior term, then, applying the condonation doctrine,
Binay, Jr.'s re-election meant that he can no longer be administratively
charged. 69 The CA then directed the Ombudsman to comment on Binay, Jr.'s
petition for certiorari. 70
On March 17, 2015, the Ombudsman manifested 71 that the TRO did
not state what act was being restrained and that since the preventive
suspension order had already been served and implemented, there was no
longer any act to restrain. 72
On the same day, Binay, Jr. filed a petition for contempt, 73 docketed
as CA-G.R. SP No. 139504, accusing Secretary Roxas, Director Brion, the
officials of the Philippine National Police, and Pea, Jr. of deliberately refusing
to obey the CA, thereby allegedly impeding, obstructing, or degrading the
administration of justice. 74The Ombudsman and Department of Justice
Secretary Leila M. De Lima were subsequently impleaded as additional
respondents upon Binay, Jr.'s filing of the amended and supplemental petition
for contempt 75 (petition for contempt) on March 19, 2015. 76 Among others,
Binay, Jr. accused the Ombudsman and other respondents therein for willfully
and maliciously ignoring the TRO issued by the CA against the preventive
suspension order. 77
In a Resolution 78 dated March 20, 2015, the CA ordered the
consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504,
and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto. 79 The
cases were set for hearing of oral arguments on March 30 and 31, 2015. 80

The Proceedings Before the Court


Prior to the hearing of the oral arguments before the CA, or on March
25, 2015, the Ombudsman filed the present petition before this Court,
assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s
prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015
Resolution directing her to file a comment on Binay, Jr.'s petition for contempt
in CA-G.R. SP No. 139504. 81 The Ombudsman claims that: (a) the CA had
no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA
6770, 82 or "The Ombudsman Act of 1989," which states that no injunctive writ
could be issued to delay the Ombudsman's investigation unless there is prima
facie evidence that the subject matter thereof is outside the latter's
jurisdiction; 83 and (b) the CA's directive for the Ombudsman to comment on
Binay, Jr.'s petition for contempt is illegal and improper, considering that the
Ombudsman is an impeachable officer, and therefore, cannot be subjected to
contempt proceedings. 84
In his comment 85 filed on April 6, 2015, Binay, Jr. argues that Section
1, Article VIII of the 1987 Constitution specifically grants the CA judicial power
to review acts of any branch or instrumentality of government, including the
Office of the Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in this case
when said office issued the preventive suspension order against him. 86 Binay,
Jr. posits that it was incumbent upon the Ombudsman to have been apprised
of the condonation doctrine as this would have weighed heavily in determining
whether there was strong evidence to warrant the issuance of the preventive
suspension order. 87 In this relation, Binay, Jr. maintains that the CA correctly
enjoined the implementation of the preventive suspension order given his
clear and unmistakable right to public office, and that it is clear that he could
not be held administratively liable for any of the charges against him since his
subsequent re-election in 2013 operated as a condonation of any
administrative offenses he may have committed during his previous
term. 88 As regards the CA's order for the Ombudsman to comment on his
petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed
an impeachable officer and, hence, cannot be removed from office except by
way of impeachment, an action for contempt imposes the penalty of fine and

imprisonment, without necessarily resulting in removal from office. Thus, the


fact that the Ombudsman is an impeachable officer should not deprive the CA
of its inherent power to punish contempt. 89
aDSIHc

Meanwhile, the CA issued a Resolution 90 dated April 6, 2015, after


the oral arguments before it were held, 91 granting Binay, Jr.'s prayer for a
WPI, which further enjoined the implementation of the preventive suspension
order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the
final relief prayed for, namely, the nullification of the preventive suspension
order, in view of the condonation doctrine, citing Aguinaldo v.
Santos. 92 Particularly, it found that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013 as
City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from 2007
to 2013. 93 In this regard, the CA added that, although there were acts which
were apparently committed by Binay, Jr. beyond his first term namely, the
alleged payments on July 3, July 4, and July 24, 2013, 94 corresponding to the
services of Hillmarc's and MANA still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona,
Jr., 95 and Mayor Garcia v. Mojica, 96 wherein the condonation doctrine was
still applied by the Court although the payments were made after the official's
re-election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election. 97 To this, the CA added that there
was no concrete evidence of Binay, Jr.'s participation for the alleged payments
made on July 3, 4, and 24, 2013. 98
In view of the CA's supervening issuance of a WPI pursuant to its April
6, 2015 Resolution, the Ombudsman filed a supplemental petition 99 before
this Court, arguing that the condonation doctrine is irrelevant to the
determination of whether the evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman also maintained that a
reliance on the condonation doctrine is a matter of defense, which should
have been raised by Binay, Jr. before it during the administrative proceedings,
and that, at any rate, there is no condonation because Binay, Jr. committed
acts subject of the OMB Complaint after his re-election in 2013. 100

On April 14 and 21, 2015, 101 the Court conducted hearings for the oral
arguments of the parties. Thereafter, they were required to file their respective
memoranda. 102 In compliance thereto, the Ombudsman filed her
Memorandum 103 on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104
Pursuant to a Resolution 105 dated June 16, 2015, the Court directed
the parties to comment on each other's memoranda, and the OSG to
comment on the Ombudsman's Memorandum, all within ten (10) days from
receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each
other's memoranda. 106 Meanwhile, on July 16, 2015, the OSG filed its
Manifestation in Lieu of Comment, 107 simply stating that it was mutually
agreed upon that the Office of the Ombudsman would file its Memorandum,
consistent with its desire to state its "institutional position." 108 In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman
pleaded, among others, that this Court abandon the condonation
doctrine. 109 In view of the foregoing, the case was deemed submitted for
resolution.
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during the
oral arguments conducted before this Court, the main issues to be resolved in
seriatim are as follows:
I. Whether or not the present petition, and not motions for
reconsideration of the assailed CA issuances in CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, is the Ombudsman's plain,
speedy, and adequate remedy;
II. Whether or not the CA has subject matter jurisdiction over the main
petition for certiorari in CA-G.R. SP No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO
and/or WPI enjoining the implementation of a preventive
suspension order issued by the Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the
TRO and eventually, the WPI in CA-G.R. SP No. 139453 enjoining

the implementation of the preventive suspension order against


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

The Ruling of the Court


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

xxx xxx xxx


Section 2. Petition for prohibition. When the proceedings of
any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess
of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any other
plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may require.

xxx xxx xxx (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed


with the lower court prior to resorting to the extraordinary remedy
of certiorari or prohibition since a motion for reconsideration may still be
considered as a plain, speedy, and adequate remedy in the ordinary course of
law. The rationale for the pre-requisite is to grant an opportunity for the lower
court or agency to correct any actual or perceived error attributed to it by the
re-examination of the legal and factual circumstances of the case. 110
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere
absence of all other legal remedies and the danger of failure of justice without
the writ, that must usually determine the propriety of certiorari [or prohibition].
A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the
lower court or agency. . . . ." 111
In this light, certain exceptions were crafted to the general rule requiring
a prior motion for reconsideration before the filing of a petition for certiorari,
which exceptions also apply to a petition for prohibition. 112 These
are: (a) where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari proceedings have
been duly raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court; (c) where there is an
urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances,
a motion for reconsideration would be useless; (e) where petitioner was
deprived of due process and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable; (g) where the proceedings in the lower
court are a nullity for lack of due process; (h) where the proceedings were ex
parte or in which the petitioner had no opportunity to object; and (i) where the
issue raised is one purely of law or where public interest is involved. 113
In this case, it is ineluctably clear that the above-highlighted exceptions
attend since, for the first time, the question on the authority of the CA and

of this Court, for that matter to enjoin the implementation of a preventive


suspension order issued by the Office of the Ombudsman is put to the fore.
This case tests the constitutional and statutory limits of the fundamental
powers of key government institutions namely, the Office of the
Ombudsman, the Legislature, and the Judiciary and hence, involves an
issue of transcendental public importance that demands no less than a careful
but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked
by a public officer who desires exculpation from administrative liability. As
such, the Ombudsman's direct resort to certiorari and prohibition before this
Court, notwithstanding her failure to move for the prior reconsideration of the
assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504
before the CA, is justified.
II.
Albeit raised for the first time by the Ombudsman in her
Memorandum, 114 it is nonetheless proper to resolve the issue on the CA's
lack of subject matter jurisdiction over the main petition for certiorari in CAG.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the
proceedings. The rationale is that subject matter jurisdiction is conferred by
law, and the lack of it affects the very authority of the court to take cognizance
of and to render judgment on the action. 115 Hence, it should be preliminarily
determined if the CA indeed had subject matter jurisdiction over the main CAG.R. SP No. 139453 petition, as the same determines the validity of all
subsequent proceedings relative thereto. It is noteworthy to point out that
Binay, Jr. was given the opportunity by this Court to be heard on this
issue, 116 as he, in fact, duly submitted his opposition through his comment to
the Ombudsman's Memorandum. 117 That being said, the Court perceives no
reasonable objection against ruling on this issue.
The Ombudsman's argument against the CA's lack of subject matter
jurisdiction over the main petition, and her corollary prayer for its dismissal, is
based on her interpretation of Section 14, RA 6770, or the Ombudsman
Act, 118 which reads in full:

Section 14. Restrictions. No writ of injunction shall be issued


by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.
cSEDTC

No court shall hear any appeal or application for remedy against


the decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law.

The subject provision may be dissected into two (2) parts.


The first paragraph of Section 14, RA 6770 is a prohibition against
any court (except the Supreme Court 119 ) from issuing a writ of injunction to
delay an investigation being conducted by the Office of the Ombudsman.
Generally speaking, "[i]njunction is a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from doing a certain act. It may be
the main action or merely a provisional remedy for and as an incident in the
main action." 120 Considering the textual qualifier "to delay," which connotes a
suspension of an action while the main case remains pending, the "writ of
injunction" mentioned in this paragraph could only refer to injunctions of the
provisional kind, consistent with the nature of a provisional injunctive relief.
The exception to the no injunction policy is when there is prima
facie evidence that the subject matter of the investigation is outside the office's
jurisdiction. The Office of the Ombudsman has disciplinary authority over all
elective and appointive officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception only of impeachable
officers, Members of Congress, and the Judiciary. 121 Nonetheless, the
Ombudsman retains the power to investigate any serious misconduct in office
allegedly committed by officials removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if warranted. 122 Note that the
Ombudsman has concurrent jurisdiction over certain administrative cases
which are within the jurisdiction of the regular courts or administrative
agencies, but has primary jurisdiction to investigate any act or omission of a
public officer or employee who is under the jurisdiction of the
Sandiganbayan. 123

On the other hand, the second paragraph of Section 14, RA


6770 provides that no appeal or application for remedy may be heard against
the decision or findings of the Ombudsman, with the exception of the Supreme
Court on pure questions of law. This paragraph, which the Ombudsman
particularly relies on in arguing that the CA had no jurisdiction over the main
CA-G.R. SP No. 139453 petition, as it is supposedly this Court which has the
sole jurisdiction to conduct a judicial review of its decisions or findings, is
vague for two (2) reasons: (1) it is unclear what the phrase "application for
remedy" or the word "findings" refers to; and(2) it does not specify what
procedural remedy is solely allowable to this Court, save that the same be
taken only against a pure question of law. The task then, is to apply the
relevant principles of statutory construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the
legislature should be sought in the words employed to express it, and that
when found[,] it should be made to govern, . . . . If the words of the law seem
to be of doubtful import, it may then perhaps become necessary to look
beyond them in order to ascertain what was in the legislative mind at the time
the law was enacted; what the circumstances were, under which the action
was taken; what evil, if any, was meant to be redressed; . . . [a]nd where the
law has contemporaneously been put into operation, and in doing so a
construction has necessarily been put upon it, this construction, especially if
followed for some considerable period, is entitled to great respect, as being
very probably a true expression of the legislative purpose, and is not lightly to
be overruled, although it is not conclusive." 124
As an aid to construction, courts may avail themselves of the actual
proceedings of the legislative body in interpreting a statute of doubtful
meaning. In case of doubt as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberations may be
adopted, 125 albeit not controlling in the interpretation of the law. 126
A. The Senate deliberations cited by
the Ombudsman do not pertain to the
second paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section


14, RA 6770, particularly on the matter of judicial review of her office's
decisions or findings, is supposedly clear from the following Senate
deliberations: 127
Senator [Edgardo J.] Angara.
. . . . On page 15, Mr. President, line 14, after the phrase "petition for"
delete the word "review" and in lieu thereof, insert the
word CERTIORARI. So that, review or appeal from the decision of
the Ombudsman would only be taken not on a petition for review,
but on certiorari.
The President [Jovito R. Salonga].
What is the practical effect of that? Will it be more difficult to
reverse the decision under review?
Senator Angara.
It has two practical effect ways, Mr. President. First is that the findings
of facts of the Ombudsman would be almost conclusive if
supported by substantial evidence. Second, we would not
unnecessarily clog the docket of the Supreme Court. So, it in
effect will be a very strict appeal procedure.
xxx xxx xxx
Senator [Teofisto T.] Guingona, [Jr.].
Does this mean that, for example, if there are exhaustive remedies
available to a respondent, the respondent himself has the right to
exhaust the administrative remedies available to him?
Senator Angara.
Yes, Mr. President, that is correct.
Senator Guingona.
And he himself may cut the proceeding short by appealing to the
Supreme Court only on certiorari?
Senator Angara.
On question of law, yes.

Senator Guingona.
And no other remedy is available to him?
Senator Angara.
Going to the Supreme Court, Mr. President?
Senator Guingona.
Yes. What I mean to say is, at what stage, for example, if he is a
presidential appointee who is the respondent, if there is
no certiorari available, is the respondent given the right to exhaust
his administrative remedies first before the Ombudsman can take
the appropriate action?
SDAaTC

Senator Angara.
Yes, Mr. President, because we do not intend to change the
administrative law principle that before one can go to court, he
must exhaust all administrative remedies . . . available to him
before he goes and seeks judicial review.
xxx xxx xxx
Senator [Neptali A.] Gonzales.
What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for
certiorari?
Senator Angara.
To make it consistent, Mr. President, with the provision here in the
bill to the effect that the finding of facts of the Ombudsman
is conclusive if supported by substantial evidence.
Senator Gonzales.
A statement has been made by the Honorable Presiding Officer to which
I concur, that in an appeal by certiorari, the appeal is more
difficult. Because in certiorari it is a matter of discretion on
the part of the court, whether to give due course to the
petition or dismiss it outright. Is that not correct, Mr. President?
Senator Angara.
That is absolutely correct, Mr. President.

Senator Gonzales.
And in a petition for certiorari, the issue is limited to whether or
not the Ombudsman here has acted without jurisdiction and
has committed a grave abuse of discretion amounting to lack
of jurisdiction. Is that not the consequence, Mr. President.
Senator Angara.
That is correct, Mr. President.
Senator Gonzales.
And it is, therefore, in this sense that the intention of the Committee is
to make it harder to have a judicial review, but should be
limited only to cases that I have enumerated.
Senator Angara.
Yes, Mr. President.
Senator Gonzales.
I think, Mr. President, our Supreme Court has made a distinction
between a petition for review and a petition for certiorari; because
before, under the 1935 Constitution appeal from any order, ruling
or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme
Court said that by this change, the court exercising judicial review
will not inquire into the facts, into the evidence, because we will
not go deeply by way of review into the evidence on record but its
authority will be limited to a determination of whether the
administrative agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I assume that that
is the purpose of this amendment, Mr. President.
Senator Angara.
The distinguished Gentleman has stated it so well.
Senator Gonzales.
I just want to put that in the Record.
Senator Angara.
It is very well stated, Mr. President.

xxx xxx xxx


The President.
It is evident that there must be some final authority to render
decisions. Should it be the Ombudsman or should it be the
Supreme Court?
Senator Angara.
As I understand it, under our scheme of government, Mr. President, it is
and has to be the Supreme Court to make the final
determination.
The President.
Then if that is so, we have to modify Section 17.
Senator Angara.
That is why, Mr. President, some of our Colleagues have made a
reservation to introduce an appropriate change during the period
of Individual Amendments.
xxx xxx xxx
The President.
All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none,
the same is approved. 128

Upon an assiduous scrutiny of these deliberations, the Court is,


however, unconvinced that the provision debated on was Section 14, RA
6770, as the Ombudsman invokes. Note that the exchange begins with the
suggestion of Senator Angara to delete the word "review" that comes after the
phrase "petition for review" and, in its stead, insert the word "certiorari" so that
the "review or appeal from the decision of the Ombudsman would not only be
taken on a petition for review, but on certiorari." The ensuing exchange
between Senators Gonzales and Angara then dwells on the purpose of
changing the method of review from one of a petition for review to a petition
for certiorari that is, to make "the appeal . . . more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition
for certiorari" was approved.

Noticeably, these references to a "petition for review" and the proposed


"petition for certiorari" are nowhere to be found in the text of Section 14, RA
6770. In fact, it was earlier mentioned that this provision, particularly its
second paragraph, does not indicate what specific procedural remedy one
should take in assailing a decision or finding of the Ombudsman; it only
reveals that the remedy be taken to this Court based on pure questions of law.
More so, it was even commented upon during the oral arguments of this
case 129 that there was no debate or clarification made on the current
formulation of the second paragraph of Section 14, RA 6770per the available
excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the
Ombudsman's entreaty that the CA had no subject matter jurisdiction over the
main CA-G.R. SP No. 139453 petition.
acEHCD

On the contrary, it actually makes greater sense to posit that these


deliberations refer to another Ombudsman Act provision, namely
Section 27, RA 6770. This is because the latter textually reflects the approval
of Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court
(fourth paragraph), and further, his comment on the conclusive nature of the
factual findings of the Ombudsman, if supported by substantial evidence (third
paragraph):
Section 27. Effectivity and Finality of Decisions. (1) All
provisionary orders of the Office of the Ombudsman are immediately
effective and executory.
A motion for reconsideration of any order, directive or decision of
the Office of the Ombudsman must be filed within five (5) days after
receipt of written notice and shall be entertained only on any of the
following grounds:
(1) New evidence has been discovered which materially affects
the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial
to the interest of the movant. The motion for
reconsideration shall be resolved within three (3) days from

filing: Provided, That only one motion for reconsideration


shall be entertained.
Findings of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive. Any order, directive
or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and
unappealable.
In all administrative disciplinary cases, orders, directives,
or decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of
the Ombudsman as the interest of justice may require. (Emphasis and
underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous


in stating that a "petition for certiorari" should be taken in accordance with
Rule 45 of the Rules of Court, as it is well-known that under the present 1997
Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the
said Rules. However, it should be discerned that the Ombudsman Act was
passed way back in 1989 130 and, hence, before the advent of the 1997 Rules
of Civil Procedure. 131 At that time, the governing 1964 Rules of
Court, 132 consistent with Section 27, RA 6770, referred to the appeal taken
thereunder as a petition for certiorari, thus possibly explaining the remedy's
textual denomination, at least in the provision's final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. A party may
appeal by certiorari, from a judgment of the Court of Appeals, by filing
with the Supreme Court a petition for certiorari, within fifteen (15)
days from notice of judgment or of the denial of his motion for
reconsideration filed in due time, and paying at the same time, to the
clerk of said court the corresponding docketing fee. The petition shall

not be acted upon without proof of service of a copy thereof to the


Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph


of Section 14, RA 6770.
The Senate deliberations' lack of discussion on the second paragraph
of Section 14, RA 6770 notwithstanding, the other principles of statutory
construction can apply to ascertain the meaning of the provision.
To recount, the second paragraph of Section 14, RA 6770 states
that "[n]o court shall hear any appeal or application for remedy against
the decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law."
As a general rule, the second paragraph of Section 14, RA 6770 bans
the whole range of remedies against issuances of the Ombudsman, by
prohibiting:(a) an appeal against any decision or finding of the
Ombudsman, and (b) "any application of remedy" (subject to the exception
below) against the same. To clarify, the phrase "application for remedy," being
a generally worded provision, and being separated from the term "appeal" by
the disjunctive "or", 133 refers to any remedy (whether taken mainly or
provisionally), except an appeal, following the maxim generalia verba sunt
generaliter intelligenda: general words are to be understood in a general
sense. 134 By the same principle, the word "findings," which is also separated
from the word "decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a
decision.
The subject provision, however, crafts an exception to the foregoing
general rule. While the specific procedural vehicle is not explicit from its text, it
is fairly deducible that the second paragraph of Section 14, RA 6770 excepts,
as the only allowable remedy against "the decision or findings of the
Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of law," whether under
the 1964 Rules of Court or the 1997 Rules of Civil Procedure:
SDHTEC

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court
xxx xxx xxx
Section 2. Contents of Petition. The petition shall contain a
concise statement of the matters involved, the assignment of errors
made in the court below, and the reasons relied on for the allowance of
the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with twelve (12) copies of the
record on appeal, if any, and of the petitioner's brief as filed in the
Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were
received shall accompany the petition.
Only questions of law may be raised in the petition and must
be distinctly set forth. If no record on appeal has been filed in the Court
of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the
whole record of the case. (Emphasis and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. A party
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the Court of
Tax Appeals, the Regional Trial Court or other courts, whenever
authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall
raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion
filed in the same action or proceeding at any time during its pendency.
(Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA


6770 could be a petition for certiorari under Rule 65 of the 1964 Rules of
Court or the 1997 Rules of Procedure is a suggestion that defies traditional

norms of procedure. It is basic procedural law that a Rule 65 petition is based


on errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and
law, relate to. In fact, there is no procedural rule, whether in the old or new
Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is
also a statutory construction principle that the lawmaking body cannot be said
to have intended the establishment of conflicting and hostile systems on the
same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility. 135 There
should then be no confusion that the second paragraph of Section 14, RA
6770 refers to a Rule 45 appeal to this Court, and no other. In sum, the
appropriate construction of this Ombudsman Act provision is that all remedies
against issuances of the Office of the Ombudsman are prohibited, except the
above-stated Rule 45 remedy to the Court on pure questions of law.
C. Validity of the second paragraph
of Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely
limited restriction on remedies is inappropriate since a Rule 45 appeal
which is within the sphere of the rules of procedure promulgated by this Court
can only be taken against final decisions or orders of lower courts, 136 and
not against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot
alter the scope of a Rule 45 appeal so as to apply to interlocutory "findings"
issued by the Ombudsman. More significantly, by confining the remedy to a
Rule 45 appeal, the provision takes away the remedy of certiorari, grounded
on errors of jurisdiction, in denigration of the judicial power constitutionally
vested in courts. In this light, the second paragraph of Section 14, RA
6770 also increased this Court's appellate jurisdiction, without a showing,
however, that it gave its consent to the same. The provision is, in fact, very
similar to the fourth paragraph of Section 27, RA 6770 (as above-cited), which
was invalidated in the case of Fabian v. Desierto 137 (Fabian). 138
In Fabian, the Court struck down the fourth paragraph of Section 27, RA
6770 as unconstitutional since it had the effect of increasing the appellate

jurisdiction of the Court without its advice and concurrence in violation of


Section 30, Article VI of the 1987 Constitution. 139 Moreover, this provision
was found to be inconsistent with Section 1, Rule 45 of the present 1997
Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized by
law;" and not of quasi-judicial agencies, such as the Office of the
Ombudsman, the remedy now being a Rule 43 appeal to the Court of
Appeals. In Ruivivar v. Office of the Ombudsman, 140 the Court's
ratiocinations and ruling in Fabian were recounted:
The case of Fabian v. Desierto arose from the doubt created in
the application of Section 27 of R.A. No. 6770 (The Ombudsman's Act)
and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office
of the Ombudsman) on the availability of appeal before the Supreme
Court to assail a decision or order of the Ombudsman in administrative
cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and
Section 7, Rule III of A.O. No. 7 and the other rules implementing
the Act) insofar as it provided for appeal by certiorari under Rule
45 from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No. 6770
had the effect, not only of increasing the appellate jurisdiction of
this Court without its advice and concurrence in violation of
Section 30, Article VI of the Constitution; it was also inconsistent
with Section 1, Rule 45 of the Rules of Court which provides that
a petition for review on certiorari shall apply only to a review of
"judgments or final orders of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law." We pointedly said:
AScHCD

As a consequence of our ratiocination that


Section 27 of Republic Act No. 6770 should be struck
down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure,
appeals from decisions of the Office of the Ombudsman
in administrative disciplinary cases should be taken to the

CA under the provisions of Rule 43. 141 (Emphasis


supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy
against "decision or findings" of the Ombudsman to a Rule 45 appeal and thus
similar to the fourth paragraph of Section 27, RA 6770 142 attempts to
effectively increase the Supreme Court's appellate jurisdiction without its
advice and concurrence,143 it is therefore concluded that the former provision
is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing, 144 Fabian should squarely apply since the above-stated
Ombudsman Act provisions are in pari materia in that they "cover the same
specific or particular subject matter," 145 that is, the manner of judicial review
over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly
determinative of the existence of the CA's subject matter jurisdiction over the
main CA-G.R. SP No. 139453 petition, including all subsequent proceedings
relative thereto, as the Ombudsman herself has developed, the Court deems it
proper to resolve this issue ex mero motu (on its own motion 146 ). This
procedure, as was similarly adopted in Fabian, finds its bearings in settled
case law:
The conventional rule, however, is that a challenge on constitutional
grounds must be raised by a party to the case, neither of whom did so
in this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the
judiciary and other departments of the government and the judges are
sworn to support its provisions, the courts are not at liberty to overlook
or disregard its commands or countenance evasions thereof. When it is
clear that a statute transgresses the authority vested in a legislative
body, it is the duty of the courts to declare that the constitution, and not
the statute, governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional
questions which are not raised in the pleadings, the rule has been
recognized to admit of certain exceptions. It does not preclude a court
from inquiring into its own jurisdiction or compel it to enter a judgment
that it lacks jurisdiction to enter. If a statute on which a court's

jurisdiction in a proceeding depends is unconstitutional, the court has


no jurisdiction in the proceeding, and since it may determine whether or
not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.
Constitutional questions, not raised in the regular and
orderly procedure in the trial are ordinarily rejected unless the
jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the
court's own motion. The Court ex mero motu may take cognizance of
lack of jurisdiction at any point in the case where that fact is developed.
The court has a clearly recognized right to determine its own
jurisdiction in any proceeding. 147 (Emphasis supplied)

D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No.
139453 was filed by Binay, Jr. before the CA in order to nullify the preventive
suspension order issued by the Ombudsman, an interlocutory
order, 148 hence, unappealable. 149
In several cases decided after Fabian, the Court has ruled that Rule 65
petitions for certiorari against unappealable issuances 150 of the Ombudsman
should be filed before the CA, and not directly before this Court:
In Office of the Ombudsman v. Capulong 151 (March 12, 2014), wherein
a preventive suspension order issued by the Office of the Ombudsman was
similar to this case assailed through a Rule 65 petition for certiorari filed by
the public officer before the CA, the Court held that "[t]here being a finding of
grave abuse of discretion on the part of the Ombudsman, it was certainly
imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of
Rule 65." 152
In Dagan v. Office of the Ombudsman 153 (November 19, 2013),
involving a Rule 65 petition for certiorari assailing a final and unappealable
order of the Office of the Ombudsman in an administrative case, the Court
remarked that "petitioner employed the correct mode of review in this
case, i.e., a special civil action forcertiorari before the Court of Appeals." 154 In
this relation, it stated that while "a special civil action for Certiorari is within the

concurrent original jurisdiction of the Supreme Court and the Court of


Appeals, such petition should be initially filed with the Court of Appeals in
observance of the doctrine of hierarchy of courts." Further, the Court
upheld Barata v. Abalos, Jr. 155 (June 6, 2001), wherein it was ruled that the
remedy against final and unappealable orders of the Office of the
Ombudsman in an administrative case was a Rule 65 petition to the CA. The
same verdict was reached in Ruivivar 156 (September 16, 2008).
AcICHD

Thus, with the unconstitutionality of the second paragraph of Section


14, RA 6770, the Court, consistent with existing jurisprudence, concludes that
the CA has subject matter jurisdiction over the main CA-G.R. SP No. 139453
petition. That being said, the Court now examines the objections of the
Ombudsman, this time against the CA's authority to issue the assailed TRO
and WPI against the implementation of the preventive suspension order,
incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has been
adamant that the CA has no jurisdiction to issue any provisional injunctive writ
against her office to enjoin its preventive suspension orders. As basis, she
invokes the first paragraph of Section 14, RA 6770 in conjunction with her
office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770]
likewise insulated it from judicial intervention," 157 particularly, "from injunctive
reliefs traditionally obtainable from the courts," 158 claiming that said writs may
work "just as effectively as direct harassment or political pressure would." 159
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees
independence of the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of
the Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas[,] and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Emphasis supplied)

the

In Gonzales III v. Office of the President 160 (Gonzales III), the Court
traced the historical underpinnings of the Office of the Ombudsman:
Prior to the 1973 Constitution, past presidents established
several Ombudsman-like agencies to serve as the people's medium for
airing grievances and for direct redress against abuses and misconduct
in the government. Ultimately, however, these agencies failed to fully
realize their objective for lack of the political independence necessary
for the effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to give it
political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos
enacted Presidential Decree (PD) No. 1487, as amended by PD No.
1607 and PD No. 1630, creating the Office of the Ombudsman to be
known as Tanodbayan. It was tasked principally to investigate, on
complaint or motu proprio, any administrative act of any administrative
agency, including any government-owned or controlled corporation.
When the Office of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to
conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the 1973
Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27,
Article II and the standard of accountability in public service under
Section 1, Article XI of the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
Section 1. Public office is a public trust. Public
officers and employees must, at all times, be accountable
to the people, serve them with utmost responsibility,

integrity, loyalty, and efficiency; act with patriotism and


justice, and lead modest lives. 161 (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's
mandate, and in correlation, the impetus behind its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office
of the Ombudsman is envisioned to be the "protector of the people"
against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the
Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to Section 13 (8),
Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to
enable it to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:
Section 21. Official Subject to Disciplinary
Authority; Exceptions. The Office of the Ombudsman
shall have disciplinary authority over all elective and
appointive officials of the Government and its
subdivisions, instrumentalities, and agencies, including
Members of the Cabinet, local government, governmentowned or controlled corporations and their subsidiaries,
except over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary.
As the Ombudsman is expected to be an "activist watchman,"
the Court has upheld its actions, although not squarely falling under
the broad powers granted [to] it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and
consistent with the law and the Constitution.
TAIaHE

The Ombudsman's broad investigative and disciplinary powers


include all acts of malfeasance, misfeasance, and nonfeasance of all
public officials, including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad powers, the
Constitution saw it fit to insulate the Office of the Ombudsman
from the pressures and influence of officialdom and partisan

politics and from fear of external reprisal by making it an


"independent" office. . . . .
xxx xxx xxx
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional agency that
is considered "a notch above other grievance-handling investigative
bodies." It has powers, both constitutional and statutory, that are
commensurate with its daunting task of enforcing accountability of
public officers. 162 (Emphasis and underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the
Ombudsman's independence vis--vis the independence of the other
constitutional bodies. Pertinently, the Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and
by the Constitutional Commissions shares certain characteristics they do
not owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In general
terms, the framers of the Constitution intended that these 'independent'
bodies be insulated from political pressure to the extent that the absence
of 'independence' would result in the impairment of their core
functions"; 163
(2) "[T]he Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed in the
discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate
and utilize the funds appropriated for their operations is anathema
to fiscal autonomy and violative not only [of] the express mandate of the
Constitution, but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of our
constitutional system is based"; 164 and
(3) "[T]he constitutional deliberations explain the Constitutional
Commissions' need for independence. In the deliberations of the 1973
Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by

law, on the premise that the effectivity of this body is dependent on its
freedom from the tentacles of politics. In a similar manner, the
deliberations of the 1987 Constitution on the Commission on Audit highlighted
the developments in the past Constitutions geared towards insulating the
Commission on Audit from political pressure." 165
At bottom, the decisive ruling in Gonzales III, however, was that the
independence of the Office of the Ombudsman, as well as that of the
foregoing independent bodies, meant freedom from control or supervision
of the Executive Department:
[T]he independent constitutional commissions have been consistently
intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as
these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential
interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990,
192 SCRA 358), we emphasized that the Constitutional Commissions,
which have been characterized under the Constitution as
"independent," are not under the control of the President, even if
they discharge functions that are executive in nature. The Court
declared as unconstitutional the President's act of temporarily
appointing the respondent in that case as Acting Chairman of the
[Commission on Elections] "however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the
Court categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed
under the discretionary power of the President.
xxx xxx xxx
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior but is similar in degree and
kind to the independence similarly guaranteed by the Constitution to
the Constitutional Commissions since all these offices fill the political
interstices of a republican democracy that are crucial to its existence
and proper functioning. 166 (Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which
provides that "[a] Deputy or the Special Prosecutor, may be removed from
office by the President for any of the grounds provided for the removal of the
Ombudsman, and after due process," partially unconstitutional insofar as it
subjected the Deputy Ombudsman to the disciplinary authority of the
President for violating the principle of independence. Meanwhile, the validity
of Section 8 (2), RA 6770 was maintained insofar as the Office of the Special
Prosecutor was concerned since said office was not considered to be
constitutionally within the Office of the Ombudsman and is, hence, not entitled
to the independence the latter enjoys under the Constitution. 167
As may be deduced from the various discourses in Gonzales III, the
concept of Ombudsman's independence covers three (3) things:
cDHAES

First: creation by the Constitution, which means that the office


cannot be abolished, nor its constitutionally specified functions and privileges,
be removed, altered, or modified by law, unless the Constitution itself allows,
or an amendment thereto is made;
Second: fiscal autonomy, which means that the office "may not be
obstructed from [its] freedom to use or dispose of [its] funds for purposes
germane to [its] functions; 168 hence, its budget cannot be strategically
decreased by officials of the political branches of government so as to impair
said functions; and
Third: insulation from executive supervision and control, which
means that those within the ranks of the office can only be disciplined by an
internal authority.
Evidently, all three aspects of independence intend to protect the Office
of the Ombudsman from political harassment and pressure, so as to free it
from the "insidious tentacles of politics." 169
That being the case, the concept of Ombudsman independence cannot
be invoked as basis to insulate the Ombudsman from judicial power
constitutionally vested unto the courts. Courts are apolitical bodies, which are
ordained to act as impartial tribunals and apply even justice to all. Hence, the
Ombudsman's notion that it can be exempt from an incident of judicial power

that is, a provisional writ of injunction against a preventive suspension


order clearly strays from the concept's rationale of insulating the office from
political harassment or pressure.
B. The first paragraph of Section 14,
RA 6770 in light of the powers of
Congress and the Court under the
1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence
notwithstanding, it remains that the first paragraph of Section 14, RA
6770 textually prohibits courts from extending provisional injunctive relief to
delay any investigation conducted by her office. Despite the usage of the
general phrase "[n]o writ of injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition does not cover the
Supreme Court. 170 As support, she cites the following Senate deliberations:
Senator [Ernesto M.] Maceda.
Mr. President, I do not know if an amendment is necessary. I would
just like to inquire for the record whether below the Supreme
Court, it is understood that there is no injunction policy
against the Ombudsman by lower courts. Or, is it necessary
to have a special paragraph for that?
Senator Angara.
Well, there is no provision here, Mr. President, that will prevent an
injunction against the Ombudsman being issued.
Senator Maceda.
In which case, I think that the intention, this being one of the
highest constitutional bodies, is to subject this only to
certiorari to the Supreme Court. I think an injunction from the
Supreme Court is, of course, in order but no lower courts
should be allowed to interfere. We had a very bad experience
with even, let us say, the Forestry Code where no injunction is
supposed to be issued against the Department of Natural
Resources. Injunctions are issued right and left by RTC
judges all over the country.

The President.
Why do we not make an express provision to that effect?
Senator Angara.
We would welcome that, Mr. President.
The President.
No [writs of injunction] from the trial courts other than the
Supreme Court.
Senator Maceda.
I so move, Mr. President, for that amendment.
The President.
Is

there any objection? [Silence] Hearing


approved. 171

none, the

same

is

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article


VIII of the 1987 Constitution, acts of the Ombudsman, including interlocutory
orders, are subject to the Supreme Court's power of judicial review. As a
corollary, the Supreme Court may issue ancillary injunctive writs or provisional
remedies in the exercise of its power of judicial review over matters pertaining
to ongoing investigations by the Office of the Ombudsman. Respecting the
CA, however, the Ombudsman begs to differ. 172
With these submissions, it is therefore apt to examine the validity of the
first paragraph of Section 14, RA 6770 insofar as it prohibits all courts, except
this Court, from issuing provisional writs of injunction to enjoin an
Ombudsman investigation. That the constitutionality of this provision is the lis
mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings. 173 More importantly, its resolution is clearly necessary to the
complete disposition of this case. 174
In the enduring words of Justice Laurel in Angara v. The Electoral
Commission (Angara), 175 the "Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative[,] and the
judicial departments of the government." 176 The constitutional demarcation of

the three fundamental powers of government is more commonly known as the


principle of separation of powers. In the landmark case of Belgica v. Ochoa,
Jr. (Belgica), 177 the Court held that "there is a violation of the separation of
powers principle when one branch of government unduly encroaches on the
domain of another." 178 In particular, "there is a violation of the principle when
there is impermissible (a) interference with and/or (b) assumption of another
department's functions." 179
Under Section 1, Article VIII of the 1987 Constitution, judicial power is
allocated to the Supreme Court and all such lower courts:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all
other lower courts may be established by laws passed by Congress.
Thus, through the passage of Batas Pambansa Bilang (BP) 129, 180 known as
"The Judiciary Reorganization Act of 1980," the Court of Appeals, 181 the
Regional Trial Courts, 182 and the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts 183 were established. Later, through
the passage of RA 1125, 184 and Presidential Decree No. (PD) 1486, 185 the
Court of Tax Appeals, and the Sandiganbayan were respectively established.
In addition to the authority to establish lower courts, Section 2,
Article VIII of the 1987 Constitution empowers Congress to define,
prescribe, and apportion the jurisdiction of all courts, except that it may
not deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5 186 of the same Article:
Section 2. The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts but may
not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.

xxx xxx xxx

Jurisdiction, as hereinabove used, more accurately pertains to


jurisdiction over the subject matter of an action. In The Diocese of Bacolod v.
Commission on Elections, 187 subject matter jurisdiction was defined as "the
authority 'to hear and determine cases of the general class to which the
proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers.'"
Among others, Congress defined, prescribed, and apportioned the
subject matter jurisdiction of this Court (subject to the aforementioned
constitutional limitations), the Court of Appeals, and the trial courts, through
the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over
Binay, Jr.'s main petition for certiorari in CA-G.R. SP No. 139453 is Section 9
(1), Chapter I of BP 129, as amended:
cTDaEH

Section 9. Jurisdiction. The Court of Appeals shall exercise:


1. Original
jurisdiction
to
issue
writs
of mandamus,
prohibition, certiorari, habeas corpus, and quo warranto,
and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not


only original but also concurrent with the Regional Trial Courts (under
Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section
5, Article VIII of the 1987 Philippine Constitution). In view of the concurrence
of these courts' jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma, 188 the
doctrine was explained as follows:
[T]his concurrence of jurisdiction is not . . . to be taken as according
to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There
is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that

petitions for the issuance of extraordinary writs against first level


("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. 189

When a court has subject matter jurisdiction over a particular case,


as conferred unto it by law, said court may then exercise its
jurisdiction acquired over that case, which is called judicial power.
Judicial power, as vested in the Supreme Court and all other courts
established by law, has been defined as the "totality of powers a court
exercises when it assumes jurisdiction and hears and decides a
case." 190 Under Section 1, Article VIII of the 1987 Constitution, it includes
"the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."
In Oposa v. Factoran, Jr. 191 the Court explained the expanded scope of
judicial power under the 1987 Constitution:
The first part of the authority represents the traditional concept
of judicial power, involving the settlement of conflicting rights as
conferred by law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the
wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because they
are tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic phrase
that can expand or contract according to the disposition of the
judiciary. 192

Judicial power is never exercised in a vacuum. A court's exercise of


the jurisdiction it has acquired over a particular case conforms to the
limits and parameters of the rules of procedure duly promulgated by this

Court. In other words, procedure is the framework within which judicial power
is exercised. InManila Railroad Co. v. Attorney-General, 193 the Court
elucidated that "[t]he power or authority of the court over the subject matter
existed and was fixed before procedure in a given cause began. Procedure
does not alter or change that power or authority; it simply directs the
manner in which it shall be fully and justly exercised. To be sure, in
certain cases, if that power is not exercised in conformity with the provisions of
the procedural law, purely, the court attempting to exercise it loses the power
to exercise it legally. This does not mean that it loses jurisdiction of the subject
matter." 194
While the power to define, prescribe, and apportion the jurisdiction of
the various courts is, by constitutional design, vested unto Congress, the
power to promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of
the 1987 Constitution reads:
Section 5. The Supreme Court shall have the following
powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by
the Supreme Court. (Emphases and underscoring
supplied)

In Echegaray v. Secretary of Justice 195 (Echegaray), the Court traced


the evolution of its rule-making authority, which, under the 1935 196 and
1973 Constitutions, 197 had been priorly subjected to a power-sharing scheme

with Congress. 198 As it now stands, the 1987 Constitution textually altered
the old provisions by deleting the concurrent power of Congress to
amend the rules, thus solidifying in one body the Court's rule-making
powers, in line with the Framers' vision of institutionalizing a "[s]tronger and
more independent judiciary." 199
cSaATC

The records of the deliberations of the Constitutional Commission would


show 200 that the Framers debated on whether or not the Court's rule-making
powers should be shared with Congress. There was an initial suggestion to
insert the sentence "The National Assembly may repeal, alter, or supplement
the said rules with the advice and concurrence of the Supreme Court", right
after the phrase "Promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the
underprivileged[,]" in the enumeration of powers of the Supreme Court. Later,
Commissioner Felicitas S. Aquino proposed to delete the former sentence
and, instead, after the word "[under]privileged," place a comma (,) to be
followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee
members agreed to Commissioner Aquino's proposal to delete the phrase
"the National Assembly may repeal, alter, or supplement the said rules with
the advice and concurrence of the Supreme Court" and (b) in turn,
Commissioner Aquino agreed to withdraw his proposal to add "the phrase
with the concurrence of the National Assembly." The changes were
approved, thereby leading to the present lack of textual reference to any
form of Congressional participation in Section 5 (5), Article
VIII, supra. The prevailing consideration was that "both bodies, the
Supreme Court and the Legislature, have their inherent powers." 201
Thus, as it now stands, Congress has no authority to repeal, alter, or
supplement rules concerning pleading, practice, and procedure. As
pronounced inEchegaray:
The rule making power of this Court was expanded. This Court for the
first time was given the power to promulgate rules concerning the
protection and enforcement of constitutional rights. The Court was also

granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly,
the 1987 Constitution took away the power of Congress to repeal,
alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading,
practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. 202(Emphasis and
underscoring supplied)

Under its rule-making authority, the Court has periodically passed


various rules of procedure, among others, the current 1997 Rules of Civil
Procedure.Identifying the appropriate procedural remedies needed for
the reasonable exercise of every court's judicial power, the provisional
remedies of temporary restraining orders and writs of preliminary
injunction were thus provided.
CHTAIc

A temporary restraining order and a writ of preliminary injunction both


constitute temporary measures availed of during the pendency of the action.
They are, by nature, ancillary because they are mere incidents in and are
dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary
injunction, whether prohibitory or mandatory, is to preserve the status
quo 203 until the merits of the case can be heard. They are usually granted
when it is made to appear that there is a substantial controversy between the
parties and one of them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or destroy the status
quo of the controversy before a full hearing can be had on the merits of the
case. In other words, they are preservative remedies for the protection of
substantive rights or interests, and, hence, not a cause of action in itself, but
merely adjunct to a main suit. 204 In a sense, they are regulatory processes
meant to prevent a case from being mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the
provisional remedies of a TRO and a WPI. A preliminary injunction is defined
under Section 1,205 Rule 58, while Section 3 206 of the same Rule enumerates
the grounds for its issuance. Meanwhile, under Section 5 207 thereof, a TRO

may be issued as a precursor to the issuance of a writ of preliminary


injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs
coincides with its inherent power to issue all auxiliary writs, processes,
and other means necessary to carry its acquired jurisdiction into effect
under Section 6, Rule 135 of the Rules of Court which reads:
Section 6. Means to carry jurisdiction into effect. When by law
jurisdiction is conferred on a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed
in the exercise of such jurisdiction is not specifically pointed out by
law 208 or by these rules, any suitable process or mode of proceeding
may be adopted which appears comfortable to the spirit of the said law
or rules.

In City of Manila v. Grecia-Cuerdo, 209 which is a case involving "[t]he


supervisory power or jurisdiction of the [Court of Tax Appeals] to issue a writ
ofcertiorari in aid of its appellate jurisdiction" 210 over "decisions, orders or
resolutions of the RTCs in local tax cases originally decided or resolved by
them in the exercise of their original or appellate jurisdiction," 211 the Court
ruled that said power "should coexist with, and be a complement to, its
appellate jurisdiction to review, by appeal, the final orders and decisions of the
RTC, in order to have complete supervision over the acts of the latter:" 212
A grant of appellate jurisdiction implies that there is included in it
the power necessary to exercise it effectively, to make all orders
that will preserve the subject of the action, and to give effect to
the final determination of the appeal. It carries with it the power to
protect that jurisdiction and to make the decisions of the court
thereunder effective. The court, in aid of its appellate jurisdiction, has
authority to control all auxiliary and incidental matters necessary to the
efficient and proper exercise of that jurisdiction. For this purpose, it
may, when necessary, prohibit or restrain the performance of any act
which might interfere with the proper exercise of its rightful jurisdiction
in cases pending before it. 213 (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court


endowed with subject matter jurisdiction:
[A] court which is endowed with a particular jurisdiction should have
powers which are necessary to enable it to act effectively within such
jurisdiction. These should be regarded as powers which are
inherent in its jurisdiction and the court must possess them in
order to enforce its rules of practice and to suppress any abuses
of its process and to defeat any attempted thwarting of such
process.
xxx xxx xxx
Indeed, courts possess certain inherent powers which may be
said to be implied from a general grant of jurisdiction, in addition to
those expressly conferred on them. These inherent powers are such
powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or are essential to the existence, dignity and
functions of the courts, as well as to the due administration of
justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to
maintain the court's jurisdiction and render it effective in behalf of
the litigants. 214(Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the longentrenched constitutional principle, articulated way back in the 1936 case
of Angara,that "where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of
the other is also conferred." 215
In the United States, the "inherent powers doctrine refers to the
principle by which the courts deal with diverse matters over which they are
thought to have intrinsic authority like procedural [rule-making] and general
judicial housekeeping. To justify the invocation or exercise of inherent powers,
a court must show thatthe powers are reasonably necessary to achieve
the specific purpose for which the exercise is sought. Inherent powers
enable the judiciary to accomplish its constitutionally mandated
functions." 216

In Smothers v. Lewis 217 (Smothers), a case involving the


constitutionality of a statute which prohibited courts from enjoining the
enforcement of a revocation order of an alcohol beverage license pending
appeal, 218 the Supreme Court of Kentucky held:
EATCcI

[T]he Court is . . . vested with certain "inherent" powers to do that


which is reasonably necessary for the administration of justice
within the scope of their jurisdiction. . . . [W]e said while
considering the rule making power and the judicial power to be one
and the same that ". . . the grant of judicial power [rule making
power] to the courts by the constitution carries with it, as a
necessary incident, the right to make that power effective in the
administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional


injunctive relief as an exercise of the court's inherent power, and to this end,
stated that any attempt on the part of Congress to interfere with the same was
constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt
the language framework of 28 Am.Jur.2d, Injunctions, Section 15, and
once and for all make clear that a court, once having obtained
jurisdiction of a cause of action, has, as an incidental to its
constitutional grant of power, inherent power to do all things reasonably
necessary to the administration of justice in the case before it. In the
exercise of this power, a court, when necessary in order to protect
or preserve the subject matter of the litigation, to protect its
jurisdiction and to make its judgment effective, may grant or issue
a temporary injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this
particular instance the injunction, is exclusively within the
constitutional realm of the courts. As such, it is not within the
purview of the legislature to grant or deny the power nor is it
within the purview of the legislature to shape or fashion
circumstances under which this inherently judicial power may be
or may not be granted or denied.
This Court has historically recognized constitutional limitations
upon the power of the legislature to interfere with or to inhibit the

performance of constitutionally granted and inherently provided judicial


functions. . . .
xxx xxx xxx
We reiterate our previously adopted language, ". . . a court, once
having obtained jurisdiction of a cause of action, has, as incidental to
its general jurisdiction, inherent power to do all things reasonably
necessary to the administration of justice in the case before it . . ." This
includes the inherent power to issue injunctions. (Emphases
supplied)

Smothers also pointed out that the legislature's authority to provide a


right to appeal in the statute does not necessarily mean that it could control
the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal
does not give it the right to encroach upon the constitutionally granted
powers of the judiciary. Once the administrative action has ended
and the right to appeal arises the legislature is void of any right to
control a subsequent appellate judicial proceeding. The judicial
rules have come into play and have preempted the
field. 219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress
passed the first paragraph of Section 14, RA 6770 and, in so doing, took away
from the courts their power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman, it encroached upon this Court's
constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of
the Rules of Court, are matters of procedure which belong exclusively within
the province of this Court. Rule 58 of the Rules of Court did not create, define,
and regulate a right but merely prescribed the means of implementing an
existing right 220 since it only provided for temporary reliefs to preserve the
applicant's right in esse which is threatened to be violated during the course of
a pending litigation. In the case of Fabian, 221 it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule
creates a right such as the right to appeal, it may be classified as a

substantive matter; but if it operates as a means of implementing an


existing right then the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in


the exercise of its legislative power, to amend the Rules of Court, as in the
cases of: (a) In Re: Exemption of The National Power Corporation from
Payment of Filing/Docket Fees; 222 (b) Re: Petition for Recognition of the
Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees; 223 and (c) Baguio Market Vendors Multi-Purpose
Cooperative (BAMARVEMPCO) v. Cabato-Cortes. 224While these cases
involved legislative enactments exempting government owned and controlled
corporations and cooperatives from paying filing fees, thus, effectively
modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish
new rules of procedure 225 solely belongs to the Court, to the exclusion
of the legislative and executive branches of government. On this score,
the Court described its authority to promulgate rules on pleading, practice,
and procedure as exclusive and "[o]ne of the safeguards of [its]
institutional independence." 226
That Congress has been vested with the authority to define, prescribe,
and apportion the jurisdiction of the various courts under Section 2, Article
VIII supra, as well as to create statutory courts under Section 1, Article
VIII supra, does not result in an abnegation of the Court's own power to
promulgate rules of pleading, practice, and procedure under Section 5 (5),
Article VIII supra. Albeit operatively interrelated, these powers are nonetheless
institutionally separate and distinct, each to be preserved under its own
sphere of authority. When Congress creates a court and delimits its
jurisdiction, the procedure for which its jurisdiction is exercised is fixed
by the Court through the rules it promulgates. The first paragraph of
Section 14, RA 6770 is not a jurisdiction-vesting provision, as the
Ombudsman misconceives, 227 because it does not define, prescribe, and
apportion the subject matter jurisdiction of courts to act on certiorari cases;
the certiorarijurisdiction of courts, particularly the CA, stands under the
relevant sections of BP 129 which were not shown to have been repealed.
Instead, through this provision,Congress interfered with a provisional

remedy that was created by this Court under its duly promulgated rules
of procedure, which utility is both integral and inherent to every court's
exercise of judicial power. Without the Court's consent to the
proscription, as may be manifested by an adoption of the same as part
of the rules of procedure through an administrative circular issued
therefor, there thus, stands to be a violation of the separation of powers
principle.
DHITCc

In addition, it should be pointed out that the breach of Congress in


prohibiting provisional injunctions, such as in the first paragraph of Section
14, RA 6770, does not only undermine the constitutional allocation of
powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted by
supervening events if no provisional injunctive relief is extended while
the court is hearing the same. Accordingly, the court's acquired jurisdiction,
through which it exercises its judicial power, is rendered nugatory. Indeed, the
force of judicial power, especially under the present Constitution, cannot be
enervated due to a court's inability to regulate what occurs during a
proceeding's course. As earlier intimated, when jurisdiction over the subject
matter is accorded by law and has been acquired by a court, its exercise
thereof should be unclipped. To give true meaning to the judicial power
contemplated by the Framers of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain unabridged, this, even by statute.
Truth be told, the policy against provisional injunctive writs in whatever variant
should only subsist under rules of procedure duly promulgated by the Court
given its sole prerogative over the same.
The following exchange between Associate Justice Marvic Mario Victor
F. Leonen (Justice Leonen) and the Acting Solicitor General Florin T. Hilbay
(Acting Solicitor General Hilbay) mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of
Court?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I
will be mistaken under the rubric of what is called provisional
remedies, our resident expert because Justice Peralta is not here
so Justice Bersamin for a while. So provisional remedy you have
injunction. . . . .
xxx xxx xxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section
Article VIII of the Constitution, if you
Constitution, can you please read that
Article VIII the Judiciary subparagraph 5,
that provision?

5, subparagraph 5 of
have a copy of the
provision? Section 5,
would you kindly read

ACTING SOLICITOR GENERAL HILBAY:


"Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts
. . ."
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading,
practice and procedure in all courts. This is the power, the
competence, the jurisdiction of what constitutional organ?
ACTING SOLICITOR GENERAL HILBAY:
The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2
which we've already been discussed with you by my other
colleagues, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of
Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:


Correct, Your Honor.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is
that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case
or is it part of litigation in an ordinary case?
cEaSHC

ACTING SOLICITOR GENERAL HILBAY:


It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of
litigation, it will not be rendered moot and academic, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?
ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
xxx xxx xxx
JUSTICE LEONEN:

Can Congress say that a Court cannot prescribe Motions to Dismiss


under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of the Court to
create remedies. . . . .
JUSTICE LEONEN:
What about bill [of] particulars, can Congress say, no Court shall have
the power to issue the supplemental pleading called the bill of
particular[s]? It cannot, because that's part of procedure . . .
ACTING SOLICITOR GENERAL HILBAY:
That is true.
JUSTICE LEONEN:
. . . or for that matter, no Court shall act on a Motion to Quash, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct.
JUSTICE LEONEN:
So what's different with the writ of injunction?
ACTING SOLICITOR GENERAL HILBAY:
Writ of injunction, Your Honor, requires the existence of jurisdiction on
the part of a court that was created by Congress. In the absence
of jurisdiction . . . (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when
they create a special agrarian court it has all procedures with it
but it does not attach particularly to that particular court, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court . . .
JUSTICE LEONEN:

Again, Counsel, what statute provides for a TRO, created the concept of
a TRO? It was a Rule. A rule of procedure and the Rules of Court,
is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is
[an] ancillary to a particular injunction in a court, is that not
correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
xxx xxx xxx 228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010, 229 the Court


instructed that "[i]t is through the Constitution that the fundamental powers of
government are established, limited and defined, and by which these powers
are distributed among the several departments. The Constitution is the basic
and paramount law to which all other laws must conform and to which all
persons, including the highest officials of the land, must defer." It would then
follow that laws that do not conform to the Constitution shall be stricken down
for being unconstitutional. 230
However, despite the ostensible breach of the separation of powers
principle, the Court is not oblivious to the policy considerations behind the first
paragraph of Section 14, RA 6770, as well as other statutory provisions of
similar import. Thus, pending deliberation on whether or not to adopt the
same, the Court, under its sole prerogative and authority over all matters of
procedure, deems it proper to declare as ineffective the prohibition against
courts other than the Supreme Court from issuing provisional injunctive writs
to enjoin investigations conducted by the Office of the Ombudsman, until it is
adopted as part of the rules of procedure through an administrative circular
duly issued therefor.
CTIEac

Hence, with Congress interfering with matters of procedure (through


passing the first paragraph of Section 14, RA 6770) without the Court's

consent thereto, it remains that the CA had the authority to issue the
questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances
were
merely
ancillary
to
the
exercise
of
the
CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP
129, as amended, and which it had already acquired over the main CA-G.R.
SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the CA
gravely abused its jurisdiction in issuing the TRO and WPI in CA-G.R. SP No.
139453 against the preventive suspension order is a persisting objection to
the validity of said injunctive writs. For its proper analysis, the Court first
provides the context of the assailed injunctive writs.
A. Subject matter of the CA's injunctive
writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a
preventive measure. In Quimbo v. Acting Ombudsman Gervacio, 231 the
Court explained the distinction, stating that its purpose is to prevent the
official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with
records which may be vital in the prosecution of the case against him:
Jurisprudential law establishes a clear-cut distinction
between suspension as preventive measure and suspension as
penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought
to be achieved.
Preventive suspension is merely a preventive measure, a
preliminary step in an administrative investigation. The purpose
of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is

found guilty of acts warranting his suspension or removal, then he is


suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly
provided by Section 24 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a
punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis
supplied)
Not being a penalty, the period within which one is under
preventive suspension is not considered part of the actual penalty of
suspension. So Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer
or employee charged is placed under preventive
suspension shall not be considered part of the actual
penalty of suspension imposed upon the employee
found guilty. 232 (Emphases supplied)

The requisites for issuing a preventive suspension order are explicitly


stated in Section 24, RA 6770:
Section 24. Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the
case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall

not be counted in computing the period of suspension herein provided.


(Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be
satisfied to justify the issuance of an order of preventive suspension pending
an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first
requirement:
(a) The charge involves dishonesty, oppression or
misconduct or neglect in the performance of duty;

grave

(b) The charge would warrant removal from the service; or


(c) The respondent's continued stay in office may prejudice the
case filed against him. 233
B. The basis of the CA's injunctive
writs is the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453 would,
however, show that the Ombudsman's non-compliance with the requisites
provided in Section 24, RA 6770 was not the basis for the issuance of the
assailed injunctive writs.
SaCIDT

The CA's March 16, 2015 Resolution which directed the issuance of the
assailed TRO was based on the case of Governor Garcia, Jr. v.
CA 234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint
were indeed committed during petitioner [Garcia's] prior term, then, following
settled jurisprudence, he can no longer be administratively charged." 235 Thus,
the Court, contemplating the application of the condonation doctrine, among
others, cautioned, in the said case, that "it would have been more prudent for
[the appellate court] to have, at the very least, on account of the extreme
urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO . . ." 236 during the pendency of the
proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance
of the assailed WPI was based on the condonation doctrine, citing the case
of Aguinaldo v. Santos. 237 The CA held that Binay, Jr. has an ostensible
right to the final relief prayed for, i.e., the nullification of the preventive
suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor
of Makati condoned any administrative liability arising from anomalous
activities relative to the Makati Parking Building project from 2007 to
2013. 238 Moreover, the CA observed that although there were acts which
were apparently committed by Binay, Jr. beyond his first term, i.e., the alleged
payments on July 3, 4, and 24, 2013, 239 corresponding to the services of
Hillmarc's and MANA still, Binay, Jr. cannot be held administratively liable
therefor
based
on
the
cases
of Salalima
v.
Guingona,
Jr., 240 and Mayor Garcia v. Mojica, 241 wherein the condonation doctrine
was applied by the Court although the payments were made after the official's
election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election. 242
The Ombudsman contends that it was inappropriate for the CA to have
considered the condonation doctrine since it was a matter of defense which
should have been raised and passed upon by her office during the
administrative disciplinary proceedings. 243 However, the Court agrees with
the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity
with the ruling in Governor Garcia, Jr., which was the subsisting jurisprudence
at that time. Thus, since condonation was duly raised by Binay, Jr. in his
petition in CA-G.R. SP No. 139453, 244 the CA did not err in passing upon the
same. Note that although Binay, Jr. secondarily argued that the evidence of
guilt against him was not strong in his petition in CA-G.R. SP No.
139453, 245 it appears that the CA found that the application of the
condonation doctrine was already sufficient to enjoin the implementation of the
preventive suspension order. Again, there is nothing aberrant with this since,
as remarked in the same case of Governor Garcia, Jr., if it was established
that the acts subject of the administrative complaint were indeed committed
during Binay, Jr.'s prior term, then, following the condonation doctrine, he can

no longer be administratively charged. In other words, with condonation


having been invoked by Binay, Jr. as an exculpatory affirmative defense at the
onset, the CA deemed it unnecessary to determine if the evidence of guilt
against him was strong, at least for the purpose of issuing the subject
injunctive writs.
With the preliminary objection resolved and the basis of the assailed
writs herein laid down, the Court now proceeds to determine if the CA gravely
abused its discretion in applying the condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's
express or implied forgiveness of an offense, [especially] by treating the
offender as if there had been no offense." 246
The condonation doctrine which connotes this same sense of
complete extinguishment of liability as will be herein elaborated upon is not
based on statutory law. It is a jurisprudential creation that originated from
the 1959 case of Pascual v. Hon. Provincial Board of Nueva
Ecija, 247 (Pascual), which was therefore decided under the 1935
Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San
Jose, Nueva Ecija, sometime in November 1951, and was later re-elected to
the same position in 1955. During his second term, or on October 6, 1956,
the Acting Provincial Governor filed administrative charges before the
Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal
Case No. 3556 on December 18 and 20, 1954. In defense, Arturo Pascual
argued that he cannot be made liable for the acts charged against him since
they were committed during his previous term of office, and therefore, invalid
grounds for disciplining him during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija, later decided against Arturo
Pascual, and when the case reached this Court on appeal, it recognized that
the controversy posed a novel issue that is, whether or not an elective
official may be disciplined for a wrongful act committed by him during his
immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court,
in Pascual, resorted to American authorities and "found that cases on the
matter are conflicting due in part, probably, to differences in statutes and
constitutional provisions, and also, in part, to a divergence of views with
respect to the question of whether the subsequent election or appointment
condones the prior misconduct." 248 Without going into the variables of
these conflicting views and cases, it proceeded to state that:
cHECAS

The weight of authorities . . . seems to incline toward the


rule denying the right to remove one from office because of
misconduct
during
a
prior
term, to
which
we
fully
subscribe. 249 (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now


uncovered that there is really no established weight of authority in the United
States (US) favoring the doctrine of condonation, which, in the words
of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out
during the oral arguments of this case, at least seventeen (17) states in the
US have abandoned the condonation doctrine. 250 The Ombudsman aptly
cites several rulings of various US State courts, as well as literature published
on the matter, to demonstrate the fact that the doctrine is not uniformly applied
across all state jurisdictions. Indeed, the treatment is nuanced:
(1) For one, it has been widely recognized that the propriety of removing
a public officer from his current term or office for misconduct which he
allegedly committed in a prior term of office is governed by the language of the
statute or constitutional provision applicable to the facts of a particular case
(see In Re Removal of Member of Council Coppola). 251 As an example, a
Texas statute, on the one hand, expressly allows removal only for an act
committed during a present term: "no officer shall be prosecuted or removed
from office for any act he may have committed prior to his election to office"
(see State ex rel. Rawlings v. Loomis).252 On the other hand, the Supreme
Court of Oklahoma allows removal from office for "acts of commission,
omission, or neglect committed, done or omitted during a previous or
preceding term of office" (see State v. Bailey). 253 Meanwhile, in some states

where the removal statute is silent or unclear, the case's resolution was
contingent upon the interpretation of the phrase "in office." On one end, the
Supreme Court of Ohio strictly construed a removal statute containing the
phrase "misfeasance of malfeasance in office" and thereby declared that, in
the absence of clear legislative language making, the word "office" must be
limited to the single term during which the offense charged against the public
officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
County). 254 Similarly, the Common Pleas Court of Allegheny County,
Pennsylvania decided that the phrase "in office" in its state constitution was a
time limitation with regard to the grounds of removal, so that an officer could
not be removed for misbehaviour which occurred prior to the taking of the
office (see Commonwealth v. Rudman). 255 The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's inability to
hold an office resulted from the commission of certain offenses, and at once
rendered him unfit to continue in office, adding the fact that the officer had
been re-elected did not condone or purge the offense (see State ex rel. Billon
v. Bourgeois). 256 Also, in the Supreme Court of New York, Apellate Division,
Fourth Department, the court construed the words "in office" to refer not to a
particular term of office but to an entire tenure; it stated that the whole purpose
of the legislature in enacting the statute in question could easily be lost sight
of, and the intent of the law-making body be thwarted, if an unworthy official
could not be removed during one term for misconduct for a previous
one (Newman v. Strobel). 257
(2) For another, condonation depended on whether or not the public
officer was a successor in the same office for which he has been
administratively charged. The "own-successor theory," which is recognized in
numerous States as an exception to condonation doctrine, is premised on the
idea that each term of a re-elected incumbent is not taken as separate and
distinct, but rather, regarded as one continuous term of office. Thus,
infractions committed in a previous term are grounds for removal because a
re-elected incumbent has no prior term to speak of 258 (see Attorney-General
v. Tufts; 259 State v. Welsh; 260 Hawkins v. Common Council of Grand
Rapids; 261 Territory v. Sanches; 262 and Tibbs v. City of Atlanta). 263

(3) Furthermore, some State courts took into consideration the


continuing nature of an offense in cases where the condonation doctrine was
invoked. InState ex rel. Douglas v. Megaarden, 264 the public officer charged
with malversation of public funds was denied the defense of condonation by
the Supreme Court of Minnesota, observing that "the large sums of money
illegally collected during the previous years are still retained by him." In State
ex rel. Beck v. Harvey, 265 the Supreme Court of Kansas ruled that "there is no
necessity" of applying the condonation doctrine since "the misconduct
continued in the present term of office[;] [thus] there was a duty upon
defendant to restore this money on demand of the county commissioners."
Moreover, in State ex rel. Londerholm v. Schroeder, 266 the Supreme Court of
Kansas held that "insofar as nondelivery and excessive prices are
concerned, . . . there remains a continuing duty on the part of the defendant to
make restitution to the country . . ., this duty extends into the present term,
and neglect to discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary
conclusion in Pascual that there is a "weight of authority" in the US on the
condonation doctrine. In fact, without any cogent exegesis to show
that Pascual had accounted for the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine in this jurisdiction would not
have been proper.
At any rate, these US cases are only of persuasive value in the process
of this Court's decision-making. "[They] are not relied upon as precedents, but
as guides of interpretation." 267 Therefore, the ultimate analysis is on whether
or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note
that the doctrine of stare decisis does not preclude this Court from revisiting
existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations
against its application. 268 In other words,stare decisis becomes an intractable
rule only when circumstances exist to preclude reversal of standing
precedent. 269 As the Ombudsman correctly points out, jurisprudence, after
all, is not a rigid, a temporal abstraction; it is an organic creature that develops
and devolves along with the society within which it thrives. 270 In the words of

a recent US Supreme Court Decision, "[w]hat we can decide, we can


undecide." 271
AHDacC

In this case, the Court agrees with the Ombudsman that since the
time Pascual was decided, the legal landscape has radically shifted.
Again, Pascual was a 1959 case decided under the 1935 Constitution, which
dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in setting,
including, of course, the sheer impact of the condonation doctrine on public
accountability, calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in
which the public officer was elected for each term is separate and distinct:
Offenses committed, or acts done, during
previous term are generally held not to furnish cause
for removal and this is especially true where the
constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from
office, and disqualification from holding office for the
term for which the officer was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161
S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d.
418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d.
237; Board of Com'rs of Kingfisher County vs.
Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other
terms . . . . 272

Second, an elective official's re-election serves as a condonation of


previous misconduct, thereby cutting the right to remove him therefor; and
[T]hat the reelection to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the right

to remove him therefor.(43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty,
184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. 273 (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have
known the life and character of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R.
281, 63 So. 559, 50 LRA (NS) 553
The Court should never remove a public officer for
acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to
elect their officers. When the people have elected a
man to office, it must be assumed that they did this
with knowledge of his life and character, and that
they disregarded or forgave his faults or misconduct,
if he had been guilty of any. It is not for the court, by
reason of such faults or misconduct to practically overrule
the will of the people. 274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:


(1) Lizares v. Hechanova 275 (May 17, 1966) wherein the Court first
applied the condonation doctrine, thereby quoting the above-stated passages
fromPascual in verbatim.
(2) Ingco v. Sanchez, et al. 276 (December 18, 1967) wherein the
Court clarified that the condonation doctrine does not apply to a criminal
case. It was explained that a criminal case is different from an administrative
case in that the former involves the People of the Philippines as a community,
and is a public wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition, the Court
noted that it is only the President who may pardon a criminal offense.
(3) Aguinaldo v. Santos 277 (Aguinaldo; August 21, 1992) a
case decided under the 1987 Constitution wherein the condonation
doctrine was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo
although his re-election merely supervened the pendency of the
proceedings.

(4) Salalima v. Guingona, Jr. 278 (Salalima; May 22, 1996) wherein
the Court reinforced the condonation doctrine by stating that the same is
justified by "sound public policy." According to the Court, condonation
prevented the elective official from being "hounded" by administrative cases
filed by his "political enemies" during a new term, for which he has to defend
himself "to the detriment of public service." Also, the Court mentioned that the
administrative liability condoned by re-election covered the execution of the
contract and the incidents related therewith. 279
(5) Mayor Garcia v. Mojica 280 (Mayor Garcia; September 10, 1999)
wherein the benefit of the doctrine was extended to then Cebu City Mayor
Alvin B. Garcia who was administratively charged for his involvement in an
anomalous contract for the supply of asphalt for Cebu City, executed only four
(4) days before the upcoming elections. The Court ruled that notwithstanding
the timing of the contract's execution, the electorate is presumed to have
known the petitioner's background and character, including his past
misconduct; hence, his subsequent re-election was deemed a condonation of
his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the
time when the contract was perfected; this meant that as long as the
contract was entered into during a prior term, acts which were done to
implement the same, even if done during a succeeding term, do not
negate the application of the condonation doctrine in favor of the
elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman 281 (Salumbides, Jr.;
April 23, 2010) wherein the Court explained the doctrinal innovations in
theSalalima and Mayor Garcia rulings, to wit:
IDSEAH

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced


the doctrine. The condonation rule was applied even if the
administrative complaint was not filed before the reelection of the
public official, and even if the alleged misconduct occurred four
days before the elections, respectively. Salalima did not distinguish
as to the date of filing of the administrative complaint, as long as the
alleged misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as long as

the wrongdoing that gave rise to the public official's culpability was
committed prior to the date of reelection. 282 (Emphasis supplied)

The Court, citing Civil Service Commission v. Sojor, 283 also clarified
that the condonation doctrine would not apply to appointive
officials since, as to them, there is no sovereign will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr.
wherein the Court remarked that it would have been prudent for the appellate
court therein to have issued a temporary restraining order against the
implementation of a preventive suspension order issued by the Ombudsman
in view of the condonation doctrine.
A
thorough
review
of
the
cases post-1987,
among
others, Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. all
cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions
directing the issuance of the assailed injunctive writs would show that the
basis for condonation under the prevailing constitutional and statutory
framework was never accounted for. What remains apparent from the text of
these cases is that the basis for condonation, as jurisprudential doctrine, was
and still remains the above-cited postulates of Pascual, which was lifted
from rulings of US courts where condonation was amply supported by their
own state laws. With respect to its applicability to administrative cases, the
core premise of condonation that is, an elective official's re-election cuts off
the right to remove him for an administrative offense committed during a prior
term was adopted hook, line, and sinker in our jurisprudence largely
because the legality of that doctrine was never tested against existing legal
norms. As in the US, the propriety of condonation is as it should be
dependent on the legal foundation of the adjudicating jurisdiction. Hence, the
Court undertakes an examination of our current laws in order to determine if
there is legal basis for the continued application of the doctrine of
condonation.
The foundation of our entire legal system is the Constitution. It is the
supreme law of the land; 284 thus, the unbending rule is that every statute
should be read in light of the Constitution. 285 Likewise, the Constitution is a
framework of a workable government; hence, its interpretation must take into

account the complexities, realities, and politics attendant to the operation of


the political branches of government. 286
As earlier intimated, Pascual was a decision promulgated in 1959.
Therefore, it was decided within the context of the 1935 Constitution which
was silent with respect to public accountability, or of the nature of public office
being a public trust. The provision in the 1935 Constitution that comes closest
in dealing with public office is Section 2, Article II which states that "[t]he
defense of the State is a prime duty of government, and in the fulfillment of
this duty all citizens may be required by law to render personal military or civil
service." 287 Perhaps owing to the 1935 Constitution's silence on public
accountability, and considering the dearth of jurisprudential rulings on the
matter, as well as the variance in the policy considerations, there was no
glaring objection confronting the Pascual Court in adopting the condonation
doctrine that originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with
public officers underwent a significant change. The new charter introduced an
entire article on accountability of public officers, found in Article XIII. Section 1
thereof positively recognized, acknowledged, and declared that "[p]ublic
office is a public trust." Accordingly, "[p]ublic officers and employees
shall serve with the highest degree of responsibility, integrity, loyalty
and efficiency, and shall remain accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have
framed and adopted the 1987 Constitution, which sets forth in the Declaration
of Principles and State Policies in Article II that "[t]he State shall maintain
honesty and integrity in the public service and take positive and
effective measures against graft and corruption." 288 Learning how
unbridled power could corrupt public servants under the regime of a dictator,
the Framers put primacy on the integrity of the public service by declaring it as
a constitutional principle and a State policy. More significantly, the 1987
Constitution strengthened and solidified what has been first proclaimed in
the 1973 Constitution by commanding public officers to be accountable to the
people at all times:

Section 1. Public office is a public trust. Public officers and


employees must at all times be accountable to the people, serve
them with utmostresponsibility, integrity, loyalty, and efficiency
and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:


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

The same mandate is found in the Revised Administrative Code under


the section of the Civil Service Commission, 290 and also, in the Code of
Conduct and Ethical Standards for Public Officials and Employees. 291
For local elective officials like Binay, Jr., the grounds to discipline,
suspend or remove an elective local official from office are stated
in Section 60 of Republic Act No. 7160, 292 otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10, 1991,
and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct
negligence, or dereliction of duty;

in

office,

gross

(d) Commission of any offense involving moral turpitude or an


offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working
days, except in the case of members of the sangguniang

panlalawigan, sangguniang
panlunsod,sanggunian
bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country;
and
(h) Such other grounds as may be provided in this Code and other
laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.

Related to this provision is Section 40 (b) of the LGC which states


that those removed from office as a result of an administrative case shall
bedisqualified from running for any elective local position:
Section 40. Disqualifications. The following persons are
disqualified from running for any elective local position:
AHCETa

xxx xxx xxx


(b) Those removed from
administrative case;

office

as

result

of

an

xxx xxx xxx (Emphasis supplied)

In the same sense, Section 52 (a) of the RRACCS provides that


the penalty of dismissal from service carries the accessory penalty of
perpetual disqualification from holding public office:
Section 52. Administrative Disabilities Inherent in Certain
Penalties.
a. The penalty of dismissal shall carry with it cancellation of
eligibility, forfeiture of retirement benefits, perpetual
disqualification from holding public office, and bar from
taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of


suspension shall not exceed the unexpired term of the elective local official
nor constitute a bar to his candidacy for as long as he meets the qualifications
required for the office. Note, however, that the provision only pertains to the
duration of the penalty and its effect on the official's candidacy. Nothing

therein states that the administrative liability therefor is extinguished by


the fact of re-election:
Section 66. Form and Notice of Decision. . . . .
xxx xxx xxx
(b) The penalty of suspension shall not exceed the unexpired term of
the respondent or a period of six (6) months for every administrative
offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications
required for the office.

Reading the 1987 Constitution together with the above-cited legal


provisions now leads this Court to the conclusion that the doctrine of
condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the
corollary requirement of accountability to the people at all times, as
mandated under the 1987 Constitution, is plainly inconsistent with the idea
that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected
to a second term of office, or even another elective post. Election is not a
mode of condoning an administrative offense, and there is simply no
constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term. In this
jurisdiction, liability arising from administrative offenses may be
condoned by the President in light of Section 19, Article VII of the 1987
Constitution which was interpreted in Llamas v. Orbos 293 to apply to
administrative offenses:
The Constitution does not distinguish between which cases executive
clemency may be exercised by the President, with the sole exclusion of
impeachment cases. By the same token, if executive clemency may be
exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of
Article VII, Section 19 of the Constitution. Following petitioner's
proposed interpretation, cases of impeachment are automatically

excluded inasmuch as the same do not necessarily involve criminal


offenses.
In the same vein, We do not clearly see any valid and
convincing reason why the President cannot grant executive clemency
in administrative cases. It is Our considered view that if the President
can grant reprieves, commutations and pardons, and remit fines and
forfeitures in criminal cases, with much more reason can she grant
executive clemency in administrative cases, which are clearly less
serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds
for discipline enumerated therein cannot anymore be invoked against an
elective local official to hold him administratively liable once he is re-elected to
office. In fact, Section 40 (b) of the LGC precludes condonation since in the
first place, an elective local official who is meted with the penalty of removal
could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of
the RRACCS imposes a penalty of perpetual disqualification from holding
public office as an accessory to the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US
State jurisdictions wherein the doctrine of condonation of administrative
liability was supported by either a constitutional or statutory provision stating,
in effect, that an officer cannot be removed by a misconduct committed during
a previous term,294 or that the disqualification to hold the office does not
extend beyond the term in which the official's delinquency
occurred. 295 In one case, 296 the absence of a provision against the reelection of an officer removed unlike Section 40 (b) of the LGC was the
justification behind condonation. In another case,297 it was deemed that
condonation through re-election was a policy under their constitution
which adoption in this jurisdiction runs counter to our present Constitution's
requirements on public accountability. There was even one case where the
doctrine of condonation was not adjudicated upon but only invoked by a party
as a ground; 298 while in another case, which was not reported in full in the
official series, the crux of the disposition was that the evidence of a prior
irregularity in no way pertained to the charge at issue and therefore, was

deemed to be incompetent. 299 Hence, owing to either their variance or


inapplicability, none of these cases can be used as basis for the continued
adoption of the condonation doctrine under our existing laws.
ScHADI

At best, Section 66 (b) of the LGC prohibits the enforcement of the


penalty of suspension beyond the unexpired portion of the elective local
official's prior term, and likewise allows said official to still run for re-election.
This
treatment
is
similar
to People
ex
rel.
Bagshaw
v.
Thompson 300 and Montgomery v. Nowell, 301both cited in Pascual, wherein it
was ruled that an officer cannot be suspended for a misconduct committed
during a prior term. However, as previously stated, nothing in Section 66 (b)
states that the elective local official's administrative liability is extinguished by
the fact of re-election. Thus, at all events, no legal provision actually supports
the theory that the liability is condoned.
Relatedly, it should be clarified that there is no truth in Pascual's
postulation that the courts would be depriving the electorate of their right to
elect their officers if condonation were not to be sanctioned. In political law,
election pertains to the process by which a particular constituency chooses an
individual to hold a public office. In this jurisdiction, there is, again, no legal
basis to conclude that election automatically implies condonation. Neither is
there any legal basis to say that every democratic and republican state has an
inherent regime of condonation. If condonation of an elective official's
administrative liability would perhaps, be allowed in this jurisdiction, then the
same should have been provided by law under our governing legal
mechanisms. May it be at the time of Pascual or at present, by no means has
it been shown that such a law, whether in a constitutional or statutory
provision, exists. Therefore, inferring from this manifest absence, it cannot be
said that the electorate's will has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when reelecting a local official, are assumed to have done so with knowledge of his
life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule. 302 Besides, it is
contrary to human experience that the electorate would have full knowledge of

a public official's misdeeds. The Ombudsman correctly points out the reality
that most corrupt acts by public officers are shrouded in secrecy, and
concealed from the public. Misconduct committed by an elective official is
easily covered up, and is almost always unknown to the electorate when
they cast their votes. 303 At a conceptual level, condonation presupposes
that the condoner has actual knowledge of what is to be condoned. Thus,
there could be no condonation of an act that is unknown.As observed
in Walsh v. City Council of Trenton 304 decided by the New Jersey Supreme
Court:
Many of the cases holding that re-election of a public official
prevents his removal for acts done in a preceding term of office are
reasoned out on the theory of condonation. We cannot subscribe to
that theory because condonation, implying as it does forgiveness,
connotes knowledge and in the absence of knowledge there can be no
condonation. One cannot forgive something of which one has no
knowledge.

That being said, this Court simply finds no legal authority to sustain the
condonation doctrine in this jurisdiction. As can be seen from this discourse, it
was a doctrine adopted from one class of US rulings way back in 1959 and
thus, out of touch from and now rendered obsolete by the current legal
regime. In consequence, it is high time for this Court to abandon the
condonation doctrine that originated from Pascual, and affirmed in the cases
following the same, such asAguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. which were all relied upon by the CA.
It should, however, be clarified that this Court's abandonment of the
condonation doctrine should be prospective in application for the reason that
judicial decisions applying or interpreting the laws or the Constitution, until
reversed, shall form part of the legal system of the Philippines. 305 Unto this
Court devolves the sole authority to interpret what the Constitution means,
and all persons are bound to follow its interpretation. As explained in De
Castro v. Judicial Bar Council; 306
Judicial decisions assume the same authority as a statute itself
and, until authoritatively abandoned, necessarily become, to the extent
that they are applicable, the criteria that must control the actuations,

not only of those called upon to abide by them, but also of those dutybound to enforce obedience to them. 307

Hence, while the future may ultimately uncover a doctrine's error, it


should be, as a general rule, recognized as "good law" prior to its
abandonment. Consequently, the people's reliance thereupon should be
respected. The landmark case on this matter is People v. Jabinal, 308 wherein
it was ruled:
[W]hen a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on the old doctrine and acted on the
faith thereof.

Later, in Spouses Benzonan v. CA, 309 it was further elaborated:


[P]ursuant to Article 8 of the Civil Code "judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines." But while our decisions form part of the law
of the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary
is provided." This is expressed in the familiar legal maxim lex prospicit,
non respicit, the law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a law
usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional. 310

Indeed, the lessons of history teach us that institutions can greatly


benefit from hindsight and rectify its ensuing course. Thus, while it is truly
perplexing to think that a doctrine which is barren of legal anchorage was able
to endure in our jurisprudence for a considerable length of time, this Court,
under a new membership, takes up the cudgels and now abandons the
condonation doctrine.
aICcHA

E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether
or not the CA committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered


as with grave abuse of discretion when such act is done in a capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction.
The abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion and hostility. 311 It has
also been held that "grave abuse of discretion arises when a lower court
or tribunal patently violates the Constitution, the law or existing
jurisprudence." 312
As earlier established, records disclose that the CA's resolutions
directing the issuance of the assailed injunctive writs were all hinged on cases
enunciating the condonation doctrine. To recount, the March 16, 2015
Resolution directing the issuance of the subject TRO was based on the case
of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the
issuance
of
the
subject
WPI
was
based
on
the
cases
of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus,
by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA
committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order
was correctly issued.
With this, the ensuing course of action should have been for the CA to
resolve the main petition for certiorari in CA-G.R. SP No. 139453 on the
merits. However, considering that the Ombudsman, on October 9, 2015, had
already found Binay, Jr. administratively liable and imposed upon him the
penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative
charges against him, the said CA petition appears to have been
mooted. 313 As initially intimated, the preventive suspension order is only an
ancillary issuance that, at its core, serves the purpose of assisting the Office
of the Ombudsman in its investigation. It therefore has no more purpose
and perforce, dissolves upon the termination of the office's process of
investigation in the instant administrative case.

F. Exceptions to the mootness principle.


This notwithstanding, this Court deems it apt to clarify that the
mootness of the issue regarding the validity of the preventive suspension
order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As
explained in Belgica, "'the moot and academic principle' is not a magical
formula that can automatically dissuade the Court in resolving a case. The
Court will decide cases, otherwise moot, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and fourth, the case is capable of repetition yet evading
review." 314 All of these scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold and
defend the Constitution if it were not to abandon the condonation doctrine now
that its infirmities have become apparent. As extensively discussed, the
continued application of the condonation doctrine is simply impermissible
under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to
the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation
that has persisted as a defense of elective officials to escape administrative
liability. It is the first time that the legal intricacies of this doctrine have been
brought to light; thus, this is a situation of exceptional character which this
Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of
elective local officials throughout the years, it is indubitable that paramount
public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly
requires the formulation of controlling principles to guide the bench, the bar,
and the public. The issue does not only involve an in-depth exegesis of
administrative law principles, but also puts to the forefront of legal discourse
the potency of the accountability provisions of the 1987 Constitution. The

Court owes it to the bench, the bar, and the public to explain how this
controversial doctrine came about, and now, its reasons for abandoning the
same in view of its relevance on the parameters of public office.
And fourth, the defense of condonation has been consistently invoked
by elective local officials against the administrative charges filed against them.
To provide a sample size, the Ombudsman has informed the Court that "for
the period of July 2013 to December 2014 alone, 85 cases from the Luzon
Office and 24 cases from the Central Office were dismissed on the ground of
condonation. Thus, in just one and a half years, over a hundred cases of
alleged misconduct involving infractions such as dishonesty, oppression,
gross neglect of duty and grave misconduct were placed beyond the reach
of the Ombudsman's investigatory and prosecutorial powers." 315 Evidently,
this fortifies the finding that the case is capable of repetition and must
therefore, not evade review.
EHaASD

In any event, the abandonment of a doctrine is wholly within the


prerogative of the Court. As mentioned, it is its own jurisprudential creation
and may therefore, pursuant to its mandate to uphold and defend the
Constitution, revoke it notwithstanding supervening events that render the
subject of discussion moot.
V.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the
Court now rules on the final issue on whether or not the CA's
Resolution 316 dated March 20, 2015 directing the Ombudsman to comment
on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper
and illegal.
The sole premise of the Ombudsman's contention is that, as an
impeachable officer, she cannot be the subject of a charge for indirect
contempt 317 because this action is criminal in nature and the penalty therefor
would result in her effective removal from office. 318 However, a reading of the
aforesaid March 20, 2015 Resolution does not show that she has already
been subjected to contempt proceedings. This issuance, in fact, makes it
clear that notwithstanding the directive for the Ombudsman to comment, the

CA has not necessarily given due course to Binay, Jr.'s contempt


petition:
Without necessarily giving due course to the Petition for
Contempt, respondents [Hon. Conchita Carpio-Morales, in her
capacity as the Ombudsman, and the Department of Interior and Local
Government] are hereby DIRECTED to file Comment on the
Petition/Amended and Supplemental Petition for Contempt (CA-G.R.
SP No. 139504) within an inextendible period of three (3) days from
receipt hereof. 319 (Emphasis and underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by filing a


comment, wherein she may properly raise her objections to the contempt
proceedings by virtue of her being an impeachable officer, the CA, in the
exercise of its sound judicial discretion, may still opt not to give due course to
Binay, Jr.'s contempt petition and accordingly, dismiss the same. Simply put,
absent any indication that the contempt petition has been given due course,
by the CA, it would then be premature for this Court to rule on the issue. The
submission of the Ombudsman on this score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises
of this Decision, the Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is
declared UNCONSTITUTIONAL, while the policy against the issuance of
provisional injunctive writs by courts other than the Supreme Court to enjoin
an investigation conducted by the Office of the Ombudsman under the first
paragraph of the said provision is DECLARED ineffective until the Court
adopts the same as part of the rules of procedure through an administrative
circular duly issued therefor;
(b) The condonation doctrine is ABANDONED, but the abandonment
is PROSPECTIVE in effect;
(c) The Court of Appeals (CA) is DIRECTED to act on respondent
Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition for certiorari in CA-G.R. SP
No. 139453 in light of the Office of the Ombudsman's supervening issuance of
its Joint Decision dated October 9, 2015 finding Binay, Jr. administratively
liable in the six (6) administrative complaints, docketed as OMB-C-A-15-0058,

OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-150062, and OMB-C-A-15-0063; and


(d) After the filing of petitioner Ombudsman Conchita Carpio-Morales's
comment, the CA is DIRECTED to resolve Binay, Jr.'s petition for contempt in
CA-G.R. SP No. 139504 with utmost dispatch.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., * Leonardo-de Castro, Del Castillo,
Villarama, Jr., Perez, Reyes and Leonen, JJ., concur.
Brion, ** J., took no part, on leave.
Peralta *** and Jardeleza, ***** JJ., took no part.
Bersamin, J., Please see my Concurring and Dissenting Opinion.
Mendoza, **** J., is on leave.

Separate Opinions
BERSAMIN, J., concurring and dissenting:
I am writing this separate opinion to memorialize my concurrence with
the declaration of the ineffectiveness of the first paragraph of Section 14
of Republic Act No. 6770, and of the unconstitutionality of the second
paragraph thereof. The main opinion has been written well by our esteemed
colleague, Associate Justice Estela M. Perlas-Bernabe, who has exhibited her
scholarly bent once again. But let me assure my colleagues in the Majority
that if I submit this concurrence, I do not mean to diminish in any way or
degree the forcefulness and correctness of the justification for the declaration.
I simply want to underscore that Section 14 of Republic Act No. 6770 should
be struck down for authorizing the undue interference with the prerogatives of
the courts of law to adopt whatever means were allowed by law and procedure
to exercise their jurisdiction in the cases properly cognizable by them.
My dissent focuses on the main opinion's re-examination of the doctrine
of condonation. This controversy does not call for the revisit of the doctrine,
and does not warrant its eventual abandonment. For the Court to persist in the
re-examination, as it does now, and to announce its abandonment of the

doctrine despite the lack of the premise of justiciability is to indulge in


conjecture or in unwarranted anticipation of future controversies. We should
refrain from the re-examination.
The Ombudsman's supplemental petition raised condonation for the first
time but only to support her insistence that the CA could not validly rely on the
doctrine of condonation to justify its issuance of the injunction. She maintained
then that condonation was a matter of defense to be properly raised only in
the appropriate administrative proceeding, viz.:
6. It must be further emphasized that the condonation doctrine
is irrelevant in the Ombudsman's determination of whether the
evidence of guilt is strong in issuing preventive suspension orders.
Said doctrine does not go into the heart of subject-matter jurisdiction.
Neither can it oust the Ombudsman of her jurisdiction which she has
already acquired. Private respondent's claim of condonation doctrine is
equally a matter of defense which, like any other defense, could be
raised in the proper pleading, could be rebutted, and could be waived.
As a defense, condonation should be passed upon after a
decision on the administrative proceedings, not this early in the
proceeding.
7. The condonation doctrine, however, cannot abate the
issuance of a preventive suspension order, precisely because an order
of preventive suspension does not render a respondent
administratively liable. A respondent may be preventively suspended,
yet may be exonerated in the end.
8. At all events, there is no condonation because private
respondent committed the acts subject of the complaint after his reelection in 2013, as was argued by petition in public respondent Court
of Appeals.
9. As mentioned earlier, there is no condonation. The assailed
act (i.e., payment), by private respondent's own admission during the
proceedings before public respondent Court of Appeals, took place
during the period of June and July 2013, which was after his re-election
in May 2013. 1

The Ombudsman again discussed the doctrine of condonation at some


length in her Memorandum as the fourth and last argument presented on the
issue of the propriety of the temporary restraining order and the writ of
preliminary injunction. 2 She reiterated, however, that the doctrine was only a
matter of defense that was relevant only in imposing an administrative penalty
on the respondent public elective official, to wit:
SICDAa

165. Thus, in deciding that the evidence of respondent Binay's


guilt is strong, petitioner did not take into consideration the so-called
"condonation doctrine" the way respondent Court of Appeals did in its
Third Resolution. The condonation doctrine is applicable and relevant
only to the imposition of an administrative penalty, not to the issuance
of a preventive suspension, the latter being merely a preliminary step in
an administrative investigation.
166. Since a preventive suspension does not hold a public
officer liable, it will not be affected by any "condonation" that the
electorate may extend to the public officer. Verily, for purposes of aiding
an investigation, a public officer may be preventively suspended even
as, ultimately, he or she will be exonerated from administrative liability
due to the condonation doctrine. CONDONATION IS A MATTER OF
DEFENSE to be positively alleged and to be weighed according to
the evidence during the administrative proceedings, and not at the
very preliminary stage thereof. 3

I agree with the Ombudsman. The question of grave abuse of discretion


on the part of the CA could be settled not by re-examining and overturning the
doctrine of condonation but by reference to Section 24 of the Republic Act No.
6770. It would be plain error for us to determine whether the Court of Appeals
(CA) gravely abused its discretion or not on the basis of the doctrine of
condonation.
The general investigatory power of the Ombudsman is decreed by
Section 13 (1), Article XI of the 1987 Constitution, 4 while her statutory
mandate to act on administrative complaints is founded on Section 19
of Republic Act No. 6770, viz.:

Section 19. Administrative complaints. The Ombudsman shall


act on all complaints relating, but not limited, to acts or omissions
which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's
functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment
of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.

In line with the power to investigate administrative cases, the


Ombudsman is vested with the authority to preventively suspend respondent
public officials and employees pursuant to Section 24 of Republic Act No.
6770, which provides:
Section 24. Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the
service; or (c) the respondent's continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the
case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.

It is important to note, however, that the Ombudsman has no authority


to issue the preventive suspension order in connection with criminal

investigations of government officials or employees because such authority


rests in the courts in which the criminal cases are filed. 5
Under Section 24, supra, two requisites must concur to render the
preventive suspension order valid. The first requisite is unique because it can
be satisfied in only one way, which is that the evidence of guilt is strong in the
judgment of the Ombudsman or the Deputy Ombudsman. But the second
requisite may be satisfied in three different ways, namely: (1) that the offense
charged involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (2) the charge would warrant removal from the
service; or (3) the respondent's continued stay in office may prejudice the
case filed against him or her. 6
Respondent Jejomar Erwin S. Binay, Jr., along with other officers and
employees of the City of Makati, were administratively charged in the Office of
the Ombudsman with grave misconduct, serious dishonesty, and conduct
prejudicial to the best interest of the service. 7 In her joint order dated March
10, 2015, the Ombudsman stated that the requisites for the issuance of the
preventive suspension order against Binay, Jr. and his co-respondents were
satisfied, specifically:
The first requisite is present in these cases, as shown by the
supporting evidence attached as Annexes to the Complaint. These
Annexes include, among other things, sworn statements
of alleged losing bidders and of some members of the Makati City BAC
attesting to the irregularities in the subject procurement; documents
negating the purported publication of bids; and disbursement vouchers,
checks, and official receipts showing disbursement of public funds by
the city government.
As regard the second requisite, all the circumstances
enumerated therein are likewise present. The Complaint charges
respondents with Grave Misconduct, Serious Dishonesty and Conduct
Prejudicial to the Best Interest of the Service. If proven true, they
constitute grounds for removal from public service under the Revised
Rules on Administrative Cases in the Civil Service. Moreover, since the
respondents' respective positions give them access to public records
and influence on possible witnesses, respondents' continued stay in

office may prejudice the cases filed against them. Thus, their
preventive suspension without pay for a period of six (6) months is in
order.
DHIcET

When he assailed the preventive suspension order by petition


for certiorari in the CA, Binay, Jr. alleged that the preventive suspension order
was illegal and issued with grave abuse of discretion because: (1) it
contravened well-settled jurisprudence applying the doctrine of condonation;
and (2) evidence of his guilt was not strong. He prayed that a temporary
restraining order or writ of preliminary injunction be issued to enjoin the
implementation of the preventive suspension order.
The CA heeded Binay, Jr.'s prayer for injunctive reliefs chiefly on the
basis of the doctrine of condonation. In the resolution promulgated on March
16, 2015, the CA, citing the pronouncement in Garcia, Jr. v. Court of
Appeals, 8 granted Binay, Jr.'s application for the temporary restraining order,
holding as follows:
In Garcia v. Court of Appeals (GR No. 185132, April 24, 2009),
the Supreme Court held that suspension from office of an elective
official, whether as a preventive measure or as a penalty will
undeservedly deprive the electorate of the services of the person they
have conscientiously chosen and voted into office.
The Supreme Court in said case likewise found serious and
urgent the question, among other matters, of whether the alleged acts
were committed in the previous term of office of petitioner therein. This
is because if it were established that the acts subject of the
administrative complaint were indeed committed during petitioner's
prior term, then following settled jurisprudence, he can no longer be
administratively charged. It further declared imperative on the part of
the appellate court, as soon as it was apprised of the said considerable
grounds, to issue an injunctive writ so as not to render moot, nugatory
and
ineffectual
the
resolution
of
the
issues
in
the certiorari petition. (Garcia, supra)
The Supreme Court also declared that it would have been more
prudent on the part of the CA, on account of the extreme urgency of
the matter and the seriousness of the issues raised in

the certiorari petition, to issue a TRO while it awaits the respective


comments of the respondents and while it judiciously contemplates on
whether or not to issue a writ of preliminary injunction. It pointed out
that the basic purpose of a restraining order is to preserve the status
quo until the hearing of the application for preliminary injunction. That,
it is a preservative remedy for the protection of substantive rights and
interests. (Garcia, supra)
In view of the seriousness of the issues raised in the Petition
for Certiorari and the possible repercussions on the electorate who will
unquestionably be affected by suspension of their elective official, the
Court resolves to grant petitioner's prayer for a Temporary
Restraining Order for a period of sixty (60) days from notice
hereof, conditioned upon the posting by petitioner of a bond in
the
amount
of
FIVE
HUNDRED
THOUSAND
PESOS
(P500,000.00). 9

In ultimately granting the writ of preliminary injunction through its April 6,


2015 resolution, the CA, relying on the doctrine of condonation adopted
in Garcia,
Jr.; Joson
III v.
Court
of
Appeals; 10 Aguinaldo
v.
Santos; 11 and Salalima v. Guingona, Jr., 12 explained:
Garcia was simply an echo of teachings in Joson v. Court of
Appeals (G.R. No. 160652, February 13, 2006) where the High Court
declared that suspension from office of an elective official would
deprive the electorate of the services of the person they have voted
into office.
Along this line, the concept of condonation, as advocated by
petitioner and opposed by public respondent Ombudsman, will assume
resonance.
Premised
on Aguinaldo, Salalima and Garcia, petitioner
asserted that the public respondent Ombudsman can hardly impose
preventive suspension of petitioner, given his election in 2010 and reelection in 2013 as Makati City Mayor, relative to his perceived illegal
participation in anomalous activities for the Makati City Hall Building II
project from 2007 to 2013.
xxx xxx xxx

To reiterate, there was no disagreement that petitioner was


elected in 2010 and re-elected as City Mayor of Makati in 2013. The
acts constitutive of the charges in the Complaint pertained to events
from November 8, 2007, when City Ordinance No. 2007-A-015
appropriated P1,240,000,000.00 as supplemental budget for 2007.
From this budget, P400,000,000.00 was allocated for the parking
building. It was allegedly during this time that a Negotiated Contract for
the architectural and engineering services were negotiated and
approved. Disbursements allegedly favored Hilmarc and MANA amidst
irregularities in the bidding process during the term of petitioner as City
Mayor of Makati.
Yet, to subscribe to public respondent Ombudsman's
submission that condonation can only be appreciated by the
investigating body after it is ventilated as an exculpation by petitioner
and considered solely by public respondent, following the exercise of
its investigatory power, will ignore the Court's constitutional power and
duty to evaluate the factual and legal foundations for, nay, impediments
to, a preventive suspension in an administrative case. 13

In my view, however, the CA erroneously banked on the


pronouncements in Garcia, Jr., Joson III, Aguinaldo, and Salalima to espouse
the doctrine of condonation as the basis to issue the injunctive writs under its
resolutions promulgated on March 16, 2015 and April 6, 2015. In
both Aguinaldo and Salalima, the Court applied the doctrine of condonation to
avoid the imposition of administrative liability upon re-elected public officials.
Specifically, the Court held in Aguinaldothat:
HcDSaT

Petitioner's re-election to the position of Governor of Cagayan


has rendered the administrative case pending before Us moot and
academic. It appears that after the canvassing of votes, petitioner
garnered the most number of votes among the candidates for governor
of Cagayan province. . . .
xxx xxx xxx

Clearly then, the rule is that a public official cannot be removed for
administrative misconduct committed during a prior term, since his re-election
to office operates as a condonation of the officer's previous misconduct to the

extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioner for
acts he may have committed during the failed coup. 14
while in Salalima, the Court maintained that:
. . . [A]ny administrative liability which petitioner Salalima might
have incurred in the execution of the retainer contract in O.P. Case No.
5469 and the incidents related therewith and in the execution on 6
March 1992 of a contract for additional repair and rehabilitation works
for the Tabaco Public Market in O.P. Case No. 5450 are deemed
extinguished by his reelection in the 11 May 1992 synchronized
elections. So are the liabilities, if any, of petitioner members of the
Sangguniang Panlalawigan ng Albay, who signed Resolution No.
129 authorizing petitioner Salalima to enter into the retainer contract in
question and who were reelected in the 1992 elections. This is,
however, without prejudice to the institution of appropriate civil and
criminal cases as may be warranted by the attendant circumstances. . .
. 15

It is clear to me that, based on the language and the factual milieu


of Aguinaldo and Salalima, which both cited Pascual v. Provincial Board of
Nueva Ecija, 16and of other akin rulings, 17 condonation shall apply only in
case of the re-election of a public officer who is sought to be permanently
removed from office as a result of his misconduct, not while such public officer
is undergoing investigation. Condonation necessarily implies that the
condoned act has already been found to have been committed by the public
officer. Hence, condonation applies to the penalty or punishment
imposed after the conduct of an administrative investigation. Under the
circumstances, the pronouncements in Aguinaldo, Salalima and the others
could not be applicable to the preventive suspension order issued to Binay, Jr.
pending his administrative investigation because preventive suspension
pending the conduct of an investigation was not yet a penalty in itself, but a
mere measure of precaution to enable the disciplining authority to investigate
the charges by precluding the respondent from influencing the witnesses
against him. 18

It is worth emphasis that preventive suspension is distinct from the


penalty of suspension. The former is imposed on a public official during the
investigation while the latter, as a penalty, is served after the final disposition
of the case. 19 The former is not a punishment or penalty for misconduct in
office, but a merely preventive measure, or a preliminary step in the
administrative investigation. 20
As I see it, the CA misconstrued the milieu in Garcia, Jr. and Joson
III as an application of the doctrine of condonation. The Court notably stated
in Garcia, Jr. andJoson III that "suspension from office of an elective official
would deprive the electorate of the services of the person they voted into
office" in the context of determining the propriety of the issuance of the
preventive suspension order. In other words, the statement only served to
remind the Ombudsman to issue the preventive suspension orders with
utmost caution in view of the gravity of the effects of suspending an incumbent
elective local official. Hence, Garcia, Jr. and Joson III did not apply the
doctrine of condonation.
I further underscore that the CA was then only resolving Binay, Jr.'s
application for injunctive reliefs against the preventive suspension order
issued by the Ombudsman. At that point, the CA's application of the doctrine
of condonation was irrelevant and unnecessary.
A preliminary injunction is an order granted at any stage of an action
prior to the judgment or final order requiring a party or a court, agency or a
person to refrain from a particular act or acts. 21 The requirements for the
issuance of a writ of preliminary injunction or temporary restraining order are
clearly set forth in Section 3, Rule 58 of the Rules of Court. 22 The sole
objective of the writ of preliminary injunction is to preserve the status quo until
the merits of the case can be heard fully. The writ of preliminary injunction is
generally based solely on initial and incomplete evidence; 23 hence, it should
not determine the merits of a case, or decide controverted facts, for, being a
preventive remedy, it only seeks to prevent threatened wrong, further injury,
and irreparable harm or injustice until the rights of the parties can be
settled. 24 As held in Saulog v. Court of Appeals, 25 it is sufficient that:

. . . for the court to act, there must be an existing basis of facts


affording a present right which is directly threatened by an act sought
to be enjoined. And while a clear showing of the right claimed is
necessary, its existence need not be conclusively established. In fact,
the evidence to be submitted to justify preliminary injunction at the
hearing thereon need not be conclusive or complete but need only be a
sampling intended merely to give the court an idea of the justification
for the preliminary injunction pending the decision of the case on the
merits. This should really be so since our concern here involves only
the proprietary of the preliminary injunction and not the merits of the
case still pending with the trial court.
Thus, to be entitled to the writ of preliminary injunction, the
private respondent needs only to show that it has the ostensible
right to the final relief prayed for in its complaint . . . . (bold
emphasis supplied.)

By relying on the doctrine of condonation, therefore, the CA went


beyond the parameters for determining whether or not to issue the injunctive
writ. To recall, Binay, Jr. had filed his petition for certiorari in the CA primarily to
assail the validity of the preventive suspension order. What was raised for the
CA to determine was whether or not the Ombudsman satisfactorily complied
with the requisites imposed by Section 24 of Republic Act No. 6770 to
establish that Binay, Jr. and his co-respondents had the ostensible right to the
final relief prayed for in their petition, which was the nullification or lifting of the
preventive suspension order. In this regard, the CA plainly exceeded its
jurisdiction.
In the meanwhile, the Ombudsman found Binay, Jr. administratively
liable, and dismissed him from the service. By such dismissal, the questions
raised against the CA's issuance of the writ of preliminary injunction against
the Ombudsman were rendered moot and academic. I join the Majority in
saying that the preventive suspension order, being an ancillary issuance, was
dissolved upon the Ombudsman's resolution of the administrative charges on
the merits. Thus, to dwell on the preventive suspension of Binay, Jr. and his
co-respondents any further would be superfluous, for, as the Court said
in Philippine Savings Bank v. Senate Impeachment Court: 26

It is a rule of universal application that courts of justice


constituted to pass upon substantial rights will not consider questions
in which no actual interests are involved; they decline jurisdiction of
moot cases. And where the issue has become moot and academic,
there is no justiciable controversy, so that a declaration thereon would
be of no practical use or value. There is no actual substantial relief
to which petitioners would be entitled and which would be
negated by the dismissal of the petition.

In short, the Court should excuse itself from exercising jurisdiction


because the main case, the administrative proceeding against the
respondents, has already been decided by the Ombudsman on the merits.
IN VIEW OF THE FOREGOING, I VOTE to PARTIALLY GRANT the
petition for certiorari and prohibition, and, accordingly, SET ASIDE the
Resolution promulgated on April 6, 2015 by the Court of Appeals.
I further VOTE to DISSOLVE the writ of preliminary injunction issued on
April 8, 2015 in C.A.-G.R. SP No. 139453; and to AFFIRM the Resolution
promulgated on March 20, 2015 in C.A.-G.R. SP No. 139504.
|||

(Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, [November 10,

2015])

12.
[G.R. No. 175289. August 31, 2011.]
CRISOSTOMO VILLARIN and ANIANO
LATAYADA, petitioners, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
DEL CASTILLO, J :
p

Mere possession of timber without the legal documents required under


forest laws and regulations makes one automatically liable of violation of
Section 68, Presidential Decree (P.D.) No. 705, 1 as amended. Lack of
criminal intent is not a valid defense.
cda

This petition for review on certiorari seeks to reverse the June 28, 2005
Decision 2 of the Court of Appeals (CA) in CA-G.R. CR No. 26720 which
affirmed in all respects the Judgment 3 of the Regional Trial Court (RTC),
Branch 38, Cagayan De Oro City, finding petitioners guilty beyond reasonable
doubt of violation of Section 68, P.D. No. 705, as amended. Likewise assailed
in this petition is the September 22, 2006 Resolution 4 denying petitioners'
Motion for Reconsideration. 5
Factual Antecedents
In a Criminal Complaint 6 filed before the Municipal Trial Court in Cities,
Branch 4, Cagayan de Oro City by Marcelino B. Pioquinto (Pioquinto), Chief of
the Forest Protection and Law Enforcement Unit under the TL Strike Force
Team of Department of Environment and Natural Resources (DENR),
petitioner
Aniano
Latayada
(Latayada)
and
three
others
namely, Barangay Captain Camilo Sudaria (Sudaria) of Tagpangi, Cagayan de
Oro City, Marlon Baillo (Baillo) and Cipriano Boyatac (Boyatac), were charged
with violation of Section 68, P.D. No. 705 as amended by Executive Order No.
277. 7
Subsequently, however, the Office of the City Prosecutor of Cagayan de
Oro City issued a Resolution 8 dated March 13, 1996 recommending the filing
of an Information for the aforesaid charge not only against Latayada, Baillo
and Boyatac but also against petitioner Crisostomo Villarin (Villarin),
then Barangay Captain of Pagalungan, Cagayan de Oro City. The dismissal of
the complaint against Sudaria was likewise recommended. Said Resolution
was then approved by the Office of the Ombudsman-Mindanao through a
Resolution 9 dated May 9, 1996 ordering the filing of the Information in the
RTC of Cagayan de Oro City.
Thus, on October 29, 1996, an Information 10 was filed against
petitioners Villarin and Latayada and their co-accused Baillo and Boyatac, for
violation of Section 68, P.D. No. 705 as follows:

That on or about January 13, 1996, in Pagalungan, Cagayan de Oro


City, Philippines, and within the jurisdiction of this Honorable Court,
pursuant to RA 7975, the accused, Crisostomo Villarin, a public officer
being the Barangay Captain of Pagalungan, this City, with salary grade
below 27, taking advantage of his official position and committing the
offense in relation to his office, and the other above-named accused, all
private individuals, namely: Marlon Baillo, Cipriano Boyatac, and Aniano
Latayada, confederating and mutually helping one another did then and
there, willfully, unlawfully and feloniously gather and possess sixty-three
(63) pieces flitches of varying sizes belonging to the Apitong specie with
a total volume of Four Thousand Three Hundred Twenty Six (4,326)
board feet valued at P108,150.00, without any authority and supporting
documents as required under existing forest laws and regulation to the
damage and prejudice of the government.
CONTRARY TO LAW. 11

On January 14, 1997, Villarin, Boyatac and Baillo, filed a Motion for
Reinvestigation. 12 They alleged that the Joint Affidavit 13 of the personnel of
the DENR which became one of the bases in filing the Information never
mentioned Villarin as one of the perpetrators of the crime while the
accusations against Baillo and Boyatac were not based on the personal
knowledge of the affiants. They also asserted that their indictment was based
on polluted sources, consisting of the sworn statements of witnesses like
Latayada and Sudaria, who both appeared to have participated in the
commission of the crime charged.
Instead of resolving the Motion for Reinvestigation, the RTC, in its
Order 14 dated January 27, 1997, directed Villarin, Boyatac, and Baillo to file
their Motion for Reinvestigation with the Office of the Ombudsman-Mindanao,
it being the entity which filed the Information in Court. On March 31, 1997,
only Villarin filed a Petition for Reinvestigation 15 but same was, however,
denied by the Office of the Ombudsman-Mindanao in an Order 16 dated May
15, 1997 because the grounds relied upon were not based on newly
discovered evidence or errors of fact, law or irregularities that are prejudicial to
the interest of the movants, pursuant to Administrative Order No. 07 or
the Rules of Procedure of the Office of the Ombudsman in Criminal Cases.

The Office of the Ombudsman-Mindanao likewise opined that Villarin was


directly implicated by Latayada, his co-accused.
The RTC thus proceeded with the arraignment of the accused who
entered separate pleas of not guilty. 17 Thereafter, trial ensued.
The Version of the Prosecution
On December 31, 1995, at around five o'clock in the afternoon,
prosecution witness Roland Granada (Granada) noticed that a public utility
jeep loaded with timber stopped near his house. The driver, petitioner
Latayada, was accompanied by four to five other persons, one of whom was
Boyatac while the rest could not be identified by Granada. 18 They alighted
from the jeep and unloaded the timber 10 to 15 meters away from the Batinay
bridge at Barangay Pagalungan, Cagayan De Oro City. Another prosecution
witness, Pastor Pansacala (Pansacala), also noticed the jeep with plate
number MBB 226 and owned by Sudaria, loaded with timber. 19 Being then
the president of a community-based organization which serves as a watchdog
of illegal cutting of trees, 20 Pansacala even ordered a certain Mario Bael to
count the timber. 21
ESTaHC

At six o'clock in the evening of the same day, Barangay Captain


Angeles Alarcon (Alarcon) 22 noticed that the pile of timber was already
placed near the bridge. Since she had no knowledge of any scheduled repair
of the Batinay bridge she was surprised to discover that the timber would be
used for the repair. After inquiring from the people living near the bridge, she
learned that Latayada and Boyatac delivered the timber. 23
Another prosecution witness, Ariel Palanga (Palanga), testified that at
seven o'clock in the morning of January 1, 1996, Boyatac bought a stick of
cigarette from his store and requested him to cover the pile of timber near the
bridge for a fee. Palanga acceded and covered the pile with coconut leaves. 24
On January 13, 1996, at around ten o'clock in the morning, prosecution
witness Juan Casenas (Casenas), a radio and TV personality of RMN-TV8,
took footages of the timber 25 hidden and covered by coconut leaves.
Casenas also took footages of more logs inside a bodega at the other side of

the bridge. In the following evening, the footages were shown in a news
program on television.
On the same day, members of the DENR Region 10 Strike Force Team
measured the timber which consisted of 63 pieces of Apitong flitches and
determined that it totaled 4,326 board feet 26 and subsequently entrusted the
same to Alarcon for safekeeping.
Upon further investigation, it was learned that the timber was
requisitioned by Villarin, who was then Barangay Captain of Pagulangan,
Cagayan de Oro City. Villarin gave Sudaria the specifications for the
requisitioned timber. Thereafter, Boyatac informed Villarin that the timber was
already delivered on December 31, 1995. 27
On January 18, 1996, Felix Vera Cruz (Vera Cruz), a security guard at
the DENR Region 10 Office, received and signed for the confiscated timber
since the property custodian at that time was not around.
The filing of the aforestated Information followed.
The Version of the Defense
In response to the clamor of the residents of Barangays Tampangan,
Pigsag-an, Tuburan and Taglinao, all in Cagayan De Oro City, Villarin, decided
to repair the impassable Batinay bridge. The project was allegedly with the
concurrence of the Barangay Council.
Pressured to immediately commence the needed repairs, Villarin
commissioned Boyatac to inquire from Sudaria about the availability of timber
without first informing the City Engineer. Sudaria asked for the specifications
which Villarin gave. Villarin then asked Baillo and Boyatac to attend to the
same. When the timber was already available, it was transported from
Tagpangi to Batinay. However, the timber flitches were seized by the DENR
Strike Force Team and taken to its office where they were received by Vera
Cruz, the security guard on duty.
Ruling of the Regional Trial Court
In its Memorandum filed before the trial court, the defense notified the
court of Boyatac's demise. 28 However, the trial court did not act on such

notice. Instead, it proceeded to rule on the culpability of Boyatac. Thus, in its


Judgment, the trial court found herein petitioners and the deceased Boyatac
guilty as charged. On the other hand, it found the evidence against Baillo
insufficient. The dispositive portion of the Judgment reads:
WHEREFORE, in view of the foregoing findings, judgment is hereby
rendered finding the accused Crisostomo Villarin, Cipriano Boyatac and
Aniano Latayada guilty beyond reasonable doubt of violating Section 68
of Presidential Decree No. 705 as amended, and hereby sentences each
of them to suffer an indeterminate sentence of twelve (12) years
of prision mayor as minimum to seventeen (17) years of reclusion
temporal as maximum.
Accused Marlon Baillo is hereby acquitted for lack of evidence.
SO ORDERED. 29

AHCaED

In reaching said conclusions, the RTC noted that:


Without an iota of doubt, accused Crisostomo Villarin, being then a
Barangay Captain of Pagalungan, Cagayan de Oro City, was the one
who procured the subject flitches, while accused Aniano Latayada and
Cipriano Boyatac mutually helped him and each other by transporting the
flitches from Sitio Batinay to the Pagalungan Bridge. The accused would
like to impress upon the Court that the subject flitches were intended for
the repair of the Pagalungan Bridge and were acquired by virtue of
Barangay Resolution No. 110 of Barangay Pagalungan. The Court is not
impressed by this lame excuse. There is no dispute that the flitches were
intended for the repair of the bridge. The Court finds it a laudable motive.
The fact remains though that the said forest products were obtained
without the necessary authority and legal documents required under
existing forest laws and regulations. 30

Petitioners filed a Motion for Reconsideration


the RTC in its Order 32 dated August 20, 2002.

31

which was denied by

Ruling of the Court of Appeals


Petitioners filed an appeal which was denied by the CA in its Decision
dated June 28, 2005. The dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, the judgment of the court a


quo finding [d]efendant-[a]ppellants Crisostomo Villarin, Cipriano
Boyatac and Aniano Latayada GUILTY beyond reasonable doubt for
violating Sec. 68 of Presidential Decree 705 is hereby AFFIRMED in
toto. No pronouncement as to cost.
SO ORDERED. 33

Petitioners filed a Motion for Reconsideration 34 which the appellate


court denied for lack of merit in its Resolution 35 promulgated on September
22, 2006.
Issues
Undeterred, petitioners filed the instant petition raising the following issues:
1. WHETHER . . . THE COURT OF APPEALS[,] ON [THE] MATTER OF
PRELIMINARY INVESTIGATION[,] DECIDED NOT IN ACCORD
WITH JURISPRUDENCE OF THE SUPREME COURT;
2. WHETHER . . . THE COURT OF APPEALS DEPARTED FROM
WHAT THE SUPREME COURT HAS ALWAYS BEEN SAYING,
THAT, TO CONVICT AN ACCUSED ALL ELEMENTS OF THE
CRIME MUST BE PROVEN BEYOND REASONABLE DOUBT
and;
3. WHETHER . . . THE COURT OF APPEALS[,] IN AFFIRMING THE
PENALTY IMPOSED BY THE COURT A QUO[,] DEPARTED
FROM JURISPRUDENCE THAT EVEN IN CRIMES [INVOLVING]
VIOLATION OF SPECIAL LAWS[,] SPECIAL CONSIDERATION
SHOULD BE GIVEN TO CIRCUMSTANCES THAT [CAN BE
CONSIDERED AS MITIGATING HAD THE VIOLATION BEEN
PENALIZED UNDER THE REVISED PENAL CODE, IN ORDER
TO REDUCE PENALTY]. 36

Petitioners argue that the refusal of the Ombudsman to conduct a


reinvestigation is tantamount to a denial of the right to due process. As Villarin
was indicted in the Information despite his not being included in the criminal
complaint filed by Pioquinto of the TL Strike Force Team of the DENR, they
claim that he was not afforded a preliminary investigation. They also bewail
the fact that persons who appear to be equally guilty, such as Sudaria, have

not been included in the Information. Hence, they argue that the Ombudsman
acted with grave abuse of discretion in denying their petition for reinvestigation
because it deprived Villarin of his right to preliminary investigation and in
refusing and to equally prosecute the guilty. They contend that the
Ombudsman
should
not
have
relied
on
the
prosecutor's
Certification 37 contained in the Information to the effect that a preliminary
investigation was conducted in the case.
Moreover, petitioners contend that the evidence was insufficient to prove
their guilt beyond reasonable doubt since they had no intention to possess the
timber and dispose of it for personal gain. They likewise claim that there was
failure on the part of the prosecution to present the timber, which were the
object of the offense.
Our Ruling
The petition is unmeritorious.
Villarin was properly afforded his right
to due process.
Records show that the investigating prosecutor received a criminal complaint
charging Sudaria, Latayada, Baillo and Boyatac with violation of Section 68
of P.D. No. 705, as amended. 38 The said complaint did not state the known
addresses of the accused. Neither was the notarized joint-affidavit of the
complainants attached thereto. The subpoena issued to the accused and the
copy of their counter-affidavits were also not part of the record. Moreover, the
complaint did not include Villarin as a respondent. However, said infirmities do
not constitute denial of due process particularly on the part of Villarin.
DTEAHI

It is evidently clear from the Resolution dated March 13, 1996 of the Office of the
City Prosecutor that Villarin and all the accused participated in the scheduled
preliminary investigation that was conducted prior to the filing of the criminal
case. 39 They knew about the filing of the complaint and even denied any
involvement in the illegal cutting of timber. They were also given the opportunity
to submit countervailing evidence to convince the investigating prosecutor of their
innocence.

Foregoing findings considered, there is no factual basis to the assertion that


Villarin was not afforded a preliminary investigation. Accordingly, we find no grave
abuse of discretion on the part of the Office of the Ombudsman-Mindanao in
denying Villarin's motion for reconsideration. It validly relied on the certification
contained in the Information that a preliminary investigation was properly
conducted in this case. The certification was made under oath by no less than
the public prosecutor, a public officer who is presumed to have regularly
performed his official duty. 40 Besides, it aptly noted that "Villarin was implicated
by . . . Latayada in his affidavit dated January 22, 1996 before Marcelino B.
Pioquinto, Chief, Forest Protection and Law Enforcement Unit. The denial of
Villarin cannot prevail over the declaration of witnesses." 41
Moreover, the absence of a proper preliminary investigation must be timely raised
and must not have been waived. This is to allow the trial court to hold the case in
abeyance and conduct its own investigation or require the prosecutor to hold a
reinvestigation, which, necessarily "involves a re-examination and re-evaluation of
the evidence already submitted by the complainant and the accused, as well as
the initial finding of probable cause which led to the filing of the Informations after
the requisite preliminary investigation." 42
Here, it is conceded that Villarin raised the issue of lack of a preliminary
investigation in his Motion for Reinvestigation. However, when the Ombudsman
denied the motion, he never raised this issue again. He accepted the
Ombudsman's verdict, entered a plea of not guilty during his arraignment and
actively participated in the trial on the merits by attending the scheduled
hearings, conducting cross-examinations and testifying on his own behalf. It was
only after the trial court rendered judgment against him that he once again
assailed the conduct of the preliminary investigation in the Motion for
Reconsideration. 43 Whatever argument Villarin may have regarding the alleged
absence of a preliminary investigation has therefore been mooted. By entering
his plea, and actively participating in the trial, he is deemed to have waived his
right to preliminary investigation.
Petitioners also contend that Sudaria should also have been included as a
principal in the commission of the offense. However, whether Sudaria should or
should not be included as co-accused can no longer be raised on appeal. Any

right that the petitioners may have in questioning the non-inclusion of Sudaria in
the Information should have been raised in a motion for reconsideration of the
March 13, 1996 Resolution of the Office of the City Prosecutor which
recommended the dismissal of the complaint against Sudaria. 44 Having failed to
avail of the proper procedural remedy, they are now estopped from assailing his
non-inclusion.
Two Offenses Penalized Under Sec. 68
of Presidential Decree No. 705.
Section 68 of P.D. No. 705, as amended, provides:
Section 68.Cutting, Gathering and/or Collecting Timber or Other Forest
Products Without License. Any person who shall cut, gather, collect,
remove timber or other forest products from any forest land, or timber
from alienable or disposable public land, or from private land, without
any authority, or possess timber or other forest products without legal
documents as required under existing forest laws and regulations, shall
be punished with the penalties imposed under Articles 309 and 310 of
the Revised Penal Code: Provided, that in the case of partnerships,
associations, or corporations, the officers who ordered the cutting,
gathering, collection or possession shall be liable, and if such officers
are aliens, they shall, in addition to the penalty, be deported without
further proceedings on the part of the Commission on Immigration and
Deportation.

"There are two distinct and separate offenses punished under Section
68 of P.D. No. 705, to wit:
(1) Cutting, gathering, collecting and removing timber or other
forest products from any forest land, or timber from alienable
or disposable public land, or from private land without any
authorization; and
IESTcD

(2) Possession of timber or other forest products without the legal


documents required under existing forest laws and
regulations." 45

The Information charged petitioners with the second offense which is


consummated by the mere possession of forest products without the proper
documents.
We reviewed the records and hold that the prosecution had discharged
the burden of proving all the elements of the offense charged. The evidence of
the prosecution proved beyond reasonable doubt that petitioners were in
custody of timber without the necessary legal documents. Incidentally, we note
that several transcripts of stenographic notes (TSNs) were not submitted by
the trial court. No explanation was provided for these missing TSNs.
Notwithstanding the incomplete TSNs, we still find that the prosecution was
able to prove beyond reasonable doubt petitioners' culpability.
The prosecution adduced several documents to prove that timber was
confiscated from petitioners. It presented a Tally Sheet 46 to prove that the
DENR Strike Force Team examined the seized timber on January 13, 1996.
The number, volume and appraised value of said timber were also noted in
the Tally Sheet. Seizure receipts were also presented to prove that the
confiscated timber were placed in the custody of Alarcon 47 and eventually
taken to the DENR Office. 48 There was a photograph of the timber taken by
the television crew led by Casenas. 49
The prosecution likewise presented in evidence the testimonies of
eyewitnesses Granada and Pansacala who testified that Latayada and
Boyatac were the ones who delivered the timber. 50
More significantly, Villarin admitted that he was the one who
commissioned the procurement of the timber 51 for the repair of the Batinay
bridge. He even deputized Boyatac to negotiate with Sudaria and gave
Latayada P2,000.00 to transport the logs. Boyatac later informed him of the
delivery of timber. However, he could not present any document to show that
his possession thereof was legal and pursuant to existing forest laws and
regulations.
Relevant portions of the testimony of Villarin are as follows:
Q As Barangay Captain of Pagalungan, of course, you heard reports
prior to the incident on December 31, 1995 that Barangay Captain

Camilo Sudaria was also engaged in supplying forest products


like forest lumber?
A Yes, because I always go to Cagayan de Oro and I can always ride on
his jeepney.
Q And you were sure that information of yours was received by you and
not only by one but several persons from Barangay Tagpangi
even up to Barangay Pagalungan?
A That's true because he even has a record with the police.
Q And you learned [this] prior to January 1995?
A Yes, Sir.
Q And your information was even to the effect that Sudaria was
supplying illegally cut lumber regularly?
A What I have noticed because I always ride on his jeep wherein lumber
was being loaded, the lumber will be taken when it arrived in
Lumbia, kilometer 5.
Q Even if there were already raids being conducted to the person of
Camilo Sudaria, still he continued to load illegally cut lumber?
A. He slowed down after several arrest because maybe he was ashamed
because he was the Barangay Captain of Tagpangi.
Q And his arrest and the slackening of his activities of illegally cut lumber
occurred prior to June 1995?
A Yes, sir.
Q [In spite] of your knowledge that he is engaged [in] illegally cut[ting]
forest products, you as Barangay Captain of Pagalungan
transacted with him for the purpose of acquiring lumber [for] the
bridge at Pagalungan?
A As we rode together in his jeep, he informed me that he has some
lumber to be used to build his house and he told me he will sell it
for the repair of the bridge in Pagalungan.

Q And because of that, in addition, you sent him the specifications of


materials for the repair of the bridge in Pagalungan?
A I let Boyatac go to him and [inquire] from him if he has those
specifications.
Q And he communicated to you that he has available lumber of those
specification?
aSIETH

A Yes, because he sent to Boyatac some requirements of the


specifications and he let me sign it.
Q And after that, you closed the [deal] with Sudaria?
A Yes, because I sent somebody to him and we did not talk anymore.
Q And thereafter on December 31, 1995, according to your testimony
before, Aniano Latayada delivered the lumber flitches you ordered
on board the passenger jeep of Camilo Sudaria?
A When the specifications were given, we were informed that the lumber
were already there. So, it was delivered.
Q Who informed you that the lumber were already delivered?
A Boyatac.
Q And he is referring to those lumber placed alongside the Batinay
Bridge.
A Yes, Sir.
Q And even without personally inspecting it, you immediately paid
Latayada the compensation for the delivery of those lumber?
A There was already an advance payment for his delivery.
Q To whom did you give the advance?
A To Latayada.
Q You have not given the amount to Camilo Sudaria?
A No, Sir.

Q In fact, the money that you paid to Latayada was specifically for the
transportation of the lumber from Tagpangi to Batinay bridge?
A Yes, Sir.
PROS. GALARRITA:
Q And at that time, you paid Latayada P2,000 as payment of the
lumber?
A Yes, Sir.
COURT:
Q Did you pay Latayada?
A Yes, Sir.
Q How much?
A P2,000.
Q And you gave this to the conductor?
A Yes, Sir.
Q You told the conductor to pay the money to Latayada?
A Yes, sir.
Q What did the conductor say?
A The conductor said that the money was for the payment for the
transporting of lumber from Tagpangi. 52 (Underscoring ours.)

Violation
of
Decree
No.
malum prohibitum.

Sec.
705,

68
as

of
Presidential
amended,
is

As a special law, the nature of the offense is malum prohibitum and as


such, criminal intent is not an essential element. "However, the prosecution
must prove that petitioners had the intent to possess (animus possidendi)" the
timber. 53 "Possession, under the law, includes not only actual possession, but
also constructive possession. Actual possession exists when the [object of the

crime] is in the immediate physical control of the accused. On the other hand,
constructive possession exists when the [object of the crime] is under the
dominion and control of the accused or when he has the right to exercise
dominion and control over the place where it is found." 54
DCTHaS

There is no dispute that petitioners were in constructive possession of


the timber without the requisite legal documents. Villarin and Latayada were
personally involved in its procurement, delivery and storage without any
license or permit issued by any competent authority. Given these and
considering that the offense ismalum prohibitum, petitioners' contention that
the possession of the illegally cut timber was not for personal gain but for the
repair of said bridge is, therefore, inconsequential.
Corpus
Delicti
Commission of the Crime

is

the

Fact

of

the

Petitioners argue that their convictions were improper because


the corpus delicti had not been established. They assert that the failure to
present the confiscated timber in court was fatal to the cause of the
prosecution.
We disagree. "[C]orpus delicti refers to the fact of the commission of the
crime charged or to the body or substance of the crime. In its legal sense, it
does not refer to the ransom money in the crime of kidnapping for ransom or
to the body of the person murdered" 55 or, in this case, to the seized timber.
"Since the corpus delicti is the fact of the commission of the crime, this Court
has ruled that even a single witness' uncorroborated testimony, if credible,
may suffice to prove it and warrant a conviction therefor. Corpus delicti may
even be established by circumstantial evidence." 56
Here, the trial court and the CA held that the corpus delicti was
established by the documentary and testimonial evidence on record. The Tally
Sheet, Seizure Receipts issued by the DENR and photograph proved the
existence of the timber and its confiscation. The testimonies of the petitioners
themselves stating in no uncertain terms the manner in which they
consummated the offense they were charged with were likewise crucial to
their conviction.

We find no reason to deviate from these findings since it has been


established that factual findings of a trial court are binding on us, absent any
showing that it overlooked or misinterpreted facts or circumstances of weight
and substance. 57 The legal precept applies to this case in which the trial
court's findings were affirmed by the appellate court. 58
The Proper Penalty
Violation of Section 68 of P.D. No. 705, as amended, is penalized as
qualified theft under Article 310 in relation to Article 309 of the Revised Penal
Code (RPC). The pertinent portions of these provisions read:
Art. 310. Qualified Theft. The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in
the next preceding articles, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the premises of
the plantation or fish taken from a fishpond or fishery, or if property is
taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or
any calamity, vehicular accident or civil disturbance.
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if
the value of the thing stolen is more than 12,000 pesos but does not
exceed 22,000 pesos; but if the value of the thing stolen exceeds the
latter amount, the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed shall
not exceed twenty years. In such cases, and in connection with the
accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be. . . .

The Information filed against the petitioners alleged that the 63 pieces
of timber without the requisite legal documents measuring 4,326 board feet
were valued at P108,150.00. To prove this allegation, the prosecution
presented Pioquinto to testify, among others, on this amount. Tally Sheets and
Seizure Receipts were also presented to corroborate said amount. With the

value of the timber exceeding P22,000.00, the basic penalty is prision


mayor in its minimum and medium periods to be imposed in its maximum, the
range of which is eight (8) years, eight (8) months and one (1) day to ten (10)
years. Since none of the qualifying circumstances in Article 310 of the RPC
was alleged in the Information, the penalty cannot be increased two degrees
higher.
ECTIHa

In determining the additional years of imprisonment, P22,000.00 is to be


deducted from P108,150.00, which results to P86,150.00. This remainder
must be divided by P10,000.00, disregarding any amount less than
P10,000.00. Consequently, eight (8) years must be added to the basic penalty.
Thus the maximum imposable penalty ranges from sixteen (16) years, eight
(8) months and one (1) day to eighteen (18) years of reclusion temporal.
Applying the Indeterminate Sentence Law, the minimum imposable
penalty should be taken anywhere within the range of the penalty next lower in
degree, without considering the modifying circumstances. The penalty one
degree lower from prision mayor in its minimum and medium periods is prision
correccional in its medium and maximum periods, the range of which is from
two (2) years, four (4) months and one (1) day to six (6) years. Thus, the RTC,
as affirmed by the CA, erroneously fixed the minimum period of the penalty at
twelve (12) years of prision mayor.
Finally, the case against Boyatac must be dismissed considering his
demise even before the RTC rendered its Judgment.
WHEREFORE, the petition is DENIED. The assailed Decision dated
June 28, 2005 and the Resolution dated September 22, 2006 in CA-G.R. CR
No. 26720 areAFFIRMED with the MODIFICATIONS that petitioners
Crisostomo Villarin and Aniano Latayada are each sentenced to suffer
imprisonment of two (2) years, four (4) months, and one (1) day of prision
correccional, as minimum, to sixteen (16) years, eight (8) months, and one (1)
day of reclusion temporal, as maximum. The complaint against Cipriano
Boyatac is hereby DISMISSED.
SO ORDERED.
|||

(Villarin v. People, G.R. No. 175289, [August 31, 2011], 672 PHIL 155-177)

13,
[G.R. No. 130644. March 13, 1998.]
THE MINOR FRANCISCO JUAN LARRANAGA, Represented in
this
Suit
by
his
mother,
MARGARITA
G.
LARRANAGA, petitioner, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
The Law Firm of Raymundo A. Armovit for petitioner.
The Solicitor General for respondents.
SYNOPSIS
Members of the PNP Criminal Investigation Group (CIG) tried to arrest petitioner
without a warrant while attending a culinary class. Petitioner resisted the arrest.
Subsequently, petitioner went to the CIG headquarters in Camp Crame where he
was met by his counsel. He was allowed to go home. His counsel made a written
undertaking that he and petitioner will appear before the Prosecutor for
preliminary investigation. In the morning of September 17, 1997, Petitioner's
counsel appeared before the City Prosecutor and specifically demanded for a
regular preliminary investigation for his client which was, however, denied on the
ground that petitioner was entitled only to an inquest investigation. Charged with
Kidnapping and Serious Illegal detention, petitioner refused to enter a plea
claiming that he was not accorded a regular preliminary investigation. The trial
court ruled that petitioner waived his right thereto when he failed to appear in the
afternoon of September 17, 1997 for an inquest investigation, on which date the
Executive Judge issued a warrant for his arrest. Petitioner questions the validity
of his arrest because he was denied the right to a preliminary investigation.
SAEHaC

The right to preliminary investigation is waived when the accused fails to invoke it
before or at the time of entering a plea at arraignment. Petitioner and his counsel
demanded a regular preliminary investigation even before he was charged, and

refused to enter a plea because of absence thereof. These acts were inconsistent
with a waiver. Preliminary investigation is part of procedural due process. It
cannot be waived unless the waiver appears to be clear and informed.
The absence of a preliminary investigation will not justify petitioner's release
arrested by virtue of warrant of arrest nor nullify the information filed against
him.
CTIEac

The holding of a preliminary investigation is a function of the Executive


Department and not of the Judiciary. Petitioner and counsel should therefore
address their plea to the Department of Justice that has control and supervision
over the conduct of preliminary investigations.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT A
WARRANT; NOT PROPER IN CASE AT BAR. It does not appear in the case
at bar that petitioner has just committed, is actually committing or is attempting to
commit an offense when the police officers tried to arrest him on September 15,
1997. In fact, petitioner was attending classes at the Center for Culinary Arts at
that time. We reject the prosecutors' argument that petitioner was actually
committing a crime at the time of the arrest since kidnapping with serious illegal
detention is a continuing crime. In the case of Parulan v. Director of Prisons cited
by the prosecutors, kidnapping with illegal detention is considered a continuing
crime where the deprivation of liberty is persistent and continuing from one place
to another. The facts show that the alleged kidnapping was committed on July 16,
1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan,
Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim,
Jacqueline Chiong, remains missing to date. There is no showing that at the time
of the arrest on September 15, 1997, Jacqueline Chiong was being detained by
petitioner who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious illegal
detention at the time of the arrest.
SITCcE

2. ID.; ID.; PRELIMINARY INVESTIGATION; WAIVER MUST BE MADE IN


CLEAR AND UNEQUIVOCAL MANNER; NOT INFERRED BY MERE FAILURE

TO APPEAR BEFORE THE CITY PROSECUTOR. A waiver, whether express


or implied, must be made in clear and unequivocal manner. Mere failure of
petitioner and his counsel to appear before the City Prosecutor in the afternoon
of September 17, 1997 cannot be construed as a waiver of his right to preliminary
investigation, considering that petitioner has been vigorously invoking his right to
a regular preliminary investigation since the start of the proceedings before the
City Prosecutor. At 9:00 in the morning of September 17, 1997, petitioner's
counsel appeared before the City Prosecutor of Cebu and moved that petitioner
be accorded a regular preliminary investigation. The City Prosecutor, however,
denied the motion, stating that petitioner is entitled only to an inquest
investigation. Petitioner orally moved for a reconsideration, to no avail. Petitioner
assailed the decision of the City Prosecutor before the Court of Appeals on a
petition for certiorari, prohibition and mandamus. After the Court of Appeals
dismissed said petition, petitioner went to this Court, still asserting that he should
be accorded a regular preliminary investigation.
EIAaDC

3. ID.; ID.; ID.; DEEMED WAIVED WHEN ACCUSED FAILS TO INVOKE IT


BEFORE PLEA; RIGHT VIGOROUSLY ASSERTED IN CASE AT BAR. The
rule is that the right to preliminary investigation is waived when the accused fails
to invoke it before or at the time of entering a plea at arraignment. Petitioner, in
this case, has been actively and consistently demanding a regular preliminary
investigation even before he was charged in court. Also, petitioner refused to
enter a plea during the arraignment because there was a pending case in this
Court regarding his right to avail of a regular preliminary investigation. Clearly, the
acts of petitioner and his counsel are inconsistent with a waiver. Preliminary
investigation is part of procedural due process. It cannot be waived unless the
waiver appears to be clear and informed.
4. ID.; ID.; ARREST; SUBSEQUENT ISSUANCE OF WARRANT OF ARREST
AGAINST A PERSON INVALIDLY DETAINED WILL DENY HIM RIGHT TO BE
RELEASED; CASE AT BAR. We held in Sanchez v. Demetriou that the filing of
charges and the issuance of the warrant of arrest against a person invalidly
detained will cure the defect of that detention or at least deny him the right to be
released because of such defect. We hold, therefore, that petitioner's detention at

the Bagong Buhay Rehabilitation Center is legal in view of the information and
the warrant of arrest against him.
5. ID.; ID.; ID.; ABSENCE OF PRELIMINARY INVESTIGATION DOES NOT
NULLIFY INFORMATION AND WARRANT OF ARREST. The absence of a
preliminary investigation will not justify petitioner's release because such defect
did not nullify the information and the warrant of arrest against him.
6. ID.; ID.; PRELIMINARY INVESTIGATION; CHANGE OF VENUE THEREOF
LIES WITH THE EXECUTIVE DEPARTMENT. As regards petitioner's motion
to change the venue and the authority to conduct the preliminary investigation,
we are constrained to dismiss the same for lack of jurisdiction. The holding of a
preliminary investigation is a function of the Executive Department and not of the
Judiciary. Petitioner should therefore address their plea to the Department of
Justice that has control and supervision over the conduct of preliminary
investigations.
DcTAIH

7. ID.; ID.; ID.; PREJUDICIAL PUBLICITY MUST CAUSE UNDUE INFLUENCE.


Nonetheless, even if the Court had jurisdiction over the issue, petitioner's
motion should still be denied because it failed to allege and prove that the City
Prosecutor of Cebu has been actually affected by the publicity. We held in Webb
v. De Leon: Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to
warrant a finding of prejudicial publicity there must be allegation and proof that
the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity.
8. ID.; SPECIAL CIVIL ACTIONS; CONTEMPT; DELIBERATELY WITHHOLDING
EVIDENCE FROM THE HIGH TRIBUNAL; LACK OF CONCRETE EVIDENCE IN
CASE AT BAR. We likewise dismiss the complaint filed by Judge Martin A.
Ocampo against Attorneys Raymundo A. Armovit, Ramon R. Teleron and
Bernardito Florido for lack of concrete evidence to prove that said lawyers
deliberately withheld from the Court the orders he issued with intent to mislead
the Court.

9. ID.; SPECIAL PROCEEDINGS; HABEAS CORPUS; MOTHER OF PERSON


DETAINED, PROPER PARTY. We also deny the motion of the prosecutors to
dismiss the petition on the ground that it was not filed by the proper party. The
prosecutors argue that petitioner Francisco Juan Larranaga is no longer a minor
under R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the
authority to file the instant petition as his representative. It appears, however, that
on October 6, 1997, petitioner's mother filed a supplemental petition for habeas
corpus on his behalf. This converted the petition at bar to one for habeas corpus.
Section 3, Rule 102 of the Revised Rules of Court states that a petition
for habeas corpus may be filed either by the party for whose relief it is intended or
by some person on his behalf.
TDAHCS

RESOLUTION
PUNO, J :
p

The following are submitted before the Court for resolution:


1. an urgent motion to implement petitioner's release filed by
petitioner on November 3, 1997;
cdrep

2. a motion for reconsideration of this Court's resolution of October


27, 1997 filed on November 17, 1997 by the counsels for the
prosecution in Crim. Case No. CBU-45303 and 45304;
3. a complaint filed by Judge Martin A. Ocampo, Presiding Judge,
Regional Trial Court, Branch 7, Cebu City, against
petitioner's counsels, Attorneys Raymundo A. Armovit,
Ramon R. Teleron and Bernardito Florido, for allegedly
deliberately withholding from this Court the omnibus order,
supplemental order and order of arraignment he issued on
October 17, 1997, thus misleading the Court into issuing its
resolution of October 27, 1997; and

4. an urgent motion to change the venue and the officers to


conduct the preliminary investigation filed by petitioner on
November 17, 1997.
The antecedent facts:
Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping
and serious illegal detention docketed as CBU-45303 and CBU-45304 pending
before the Regional Trial Court (RTC), Branch 7, Cebu City. He is presently
detained at the Bagong Buhay Rehabilitation Center.
On October 1, 1997, petitioner, represented by his mother, Margarita G.
Larranaga, filed with this Court a petition for certiorari, prohibition and mandamus
with writs of preliminary prohibitory and mandatory injunction. Petitioner alleged
that he was denied the right to preliminary investigation and sought to annul the
informations as well as the warrant of arrest issued in consequence thereof. In
the alternative, petitioner prayed that a preliminary investigation be conducted
and that he be released from detention pending the investigation. 1 Petitioner filed
a supplemental petition for habeas corpus or bail on October 6, 1997. 2
On October 20, 1997, the Solicitor General filed a manifestation and motion in
lieu of comment submitting that petitioner should have been given a regular
preliminary investigation before the filing of the informations and the issuance of
the warrant of arrest. The Solicitor General recommended that petitioner be
accorded his right to preliminary investigation and that he be released from
detention during the pendency thereof. 3
On October 27, 1997, we issued a resolution holding that petitioner was deprived
of his right to preliminary investigation when the City Prosecutor of Cebu insisted
that he was only entitled to an inquest investigation. 4 Hence, we resolved:
1. to set aside the inquest investigation of petitioner and to order
the Office of the City Prosecutor of Cebu to conduct a regular
preliminary investigation of the petitioner in accord with
Section 3, Rule 112;

2. to annul the Order for Detention During The Pendency of the


Case issued by Executive Judge Priscila Agana against the
petitioner in Crim. Case No. CBU-45303 and 45304;
3. to order the immediate release of petitioner pending his
preliminary investigation; and
4. to order the Presiding Judge of Br. VII, RTC of Cebu City to
cease and desist from proceeding with the arraignment and
trial of petitioner in Crim. Case No. CBU-45303 and 45304,
pending the result of petitioner's preliminary investigation.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte
motion praying for his immediate release pursuant to our October 27 resolution. 5
The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of
petitioner's motion. It stated that it would be premature to act on the motion since
the trial court has not yet received an official copy of our October 27 resolution
and that said resolution has not yet attained finality. Furthermore, Judge Ocampo
called the Court's attention to the fact that petitioner has been arraigned on
October 14, 1997 and waived his right to preliminary investigation. 6
On November 3, 1997, petitioner filed with this Court an urgent motion praying,
among others, that Judge Ocampo be directed to order petitioner's immediate
release upon receipt of our October 27 resolution. 7
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997
alleging that petitioner's counsels, Attorneys Raymundo A. Armovit, Ramon R.
Teleron and Bernardito Florido, deliberately withheld from this Court the omnibus
order, supplemental order and order of arraignment, all issued by him on October
14, 1997 in connection with Crim. Case No. CBU-45303 and 45304. Judge
Ocampo alleged that by withholding said orders, petitioner's counsels unwittingly
misled the Court in its October 27 resolution. 8
On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU45303 and 45304 filed a motion for reconsideration of our October 27
resolution. 9 They raised the following arguments:

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


and detention about two months after the abduction of the
victims was lawful;
2. Since petitioner was arrested without a warrant, his case comes
within the purview of Section 7 of Rule 112, not under
Section 3 thereof;
3. The filing of the informations in court and the issuance of the
corresponding warrants of arrest by Executive Judge Priscila
S. Agana cured whatever defect there was in petitioner's
arrest and detention;
4. Petitioner was validly arraigned on October 14, 1997 and the
validity of such arraignment was not set aside by this
tribunal;
5. The case of Sanchez v. Demetriou squarely applies to the
instant case; and
6. Petitioner is no longer a minor pursuant to R.A. 6809.
The Solicitor General, meanwhile, in its comment to petitioner's urgent motion for
release, modified its stance regarding the validity of petitioner's detention. 10 It
stated:
Considering that petitioner was arraigned (a supervening event after the
filing of the petition and before the issuance of the TRO), petitioner
should be kept in detention without prejudice to his right to preliminary
investigation. 11

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

The primary issues to be resolved are: (1 ) whether petitioner is entitled to a


regular preliminary investigation, and (2) whether petitioner should be released
from detention pending the investigation.
We resolve the first issue in the affirmative.
The prosecutors argue that petitioner is entitled only to an inquest investigation
under Section 7 of Rule 112 since he was lawfully arrested without a warrant
under Section 5, Rule 113 of the Revised Rules of Court.
The prosecutors' argument is benefit of merit. Section 7 of Rule 112 13 applies
only to persons lawfully arrested without a warrant. Petitioner in this case was, in
the first place, not arrested either by a peace officer or a private person. The facts
show that on September 15, 1997, some members of the Philippine National
Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary
Arts in Quezon City to arrest petitioner, albeit without warrant. Petitioner resisted
the arrest and immediately phoned his sister and brother-in-law. Petitioner's sister
sought the aid of Atty. Raymundo A.. Armovit. Atty. Armovit, over the phone,
dissuaded the police officers from carrying out the warrantless arrest and
proposed to meet with them at the CIG headquarters in Camp Crame, Quezon
City. The police officers yielded and returned to the CIG headquarters. Petitioner,
together with his sister and brother-in-law also went to the CIG headquarters
aboard their own vehicle. Atty. Armovit questioned the legality of the warrantless
arrest before CIG Legal Officer Ruben Zacarias. After consulting with his
superiors, Legal Officer Zacarias ordered to stop the arrest and allowed petitioner
to go home. Atty. Armovit made an undertaking in writing that he and petitioner
would appear before the Cebu City Prosecutor on September 17, 1997 for
preliminary investigation.
An arrest is defined as the taking of a person into custody in order that he may be
bound to answer for the commission of an offense. 14 It is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest. 15 An arrest signifies restraint on person, depriving one
of his own will and liberty, binding him to become obedient to the will of the
law. 16 The foregoing facts show no restraint upon the person of petitioner.

Neither do they show that petitioner was deprived of his own will and liberty.
Hence, Section 7 of Rule 112 does not apply to petitioner.
To be sure, even if petitioner were arrested by the PNP CIG personnel, such
arrest would still be illegal because of the absence of a warrant. Section 5 of Rule
113 states when a warrantless arrest is deemed lawful, thus:
Sec. 5. Arrest without a warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
LLjur

(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.

It does not appear in the case at bar that petitioner has just committed, is actually
committing or is attempting to commit an offense when the police officers tried to
arrest him on September 15, 1997. In fact, petitioner was attending classes at the
Center for Culinary Arts at that time.
We reject the prosecutors' argument that petitioner was actually committing a
crime at the time of the arrest since kidnapping with serious illegal detention is a
continuing crime. In the case of Parulan v. Director of Prisons 17 cited by the
prosecutors, kidnapping with illegal detention is considered a continuing crime
where the deprivation of liberty is persistent and continuing from one place to
another. The facts show that the alleged kidnapping was committed on July 16,
1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan,
Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim,

Jacqueline Chiong, remains missing to date. There is no showing that at the time
of the arrest on September 15, 1997, Jacqueline Chiong was being detained by
petitioner who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious illegal
detention at the time of the arrest.

Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
assert that petitioner is no longer entitled to a preliminary investigation because
he had previously waived his right to such investigation. In his omnibus order
dated October 14, 1997, Judge Ocampo held that petitioner waived his right to
preliminary investigation when he failed to appear during the preliminary
investigation set by the City Prosecutor in the afternoon of September 17, 1997,
despite the express warning that "failure of the counsel (to present the petitioner
to the Cebu City Prosecutor on said time and date) would be treated as a waiver
of his client's right to preliminary investigation."
We disagree. A waiver, whether express or implied, must be made in clear and
unequivocal manner. Mere failure of petitioner and his counsel to appear before
the City Prosecutor in the afternoon of September 17, 1997 cannot be construed
as a waiver of his right to preliminary investigation, considering that petitioner has
been vigorously invoking his right to a regular preliminary investigation since the
start of the proceedings before the City Prosecutor. At 9:00 in the morning of
September 17, 1997, petitioner's counsel appeared before the City Prosecutor of
Cebu and moved that petitioner be accorded a regular preliminary investigation.
The City Prosecutor, however, denied the motion, stating that petitioner is entitled
only to an inquest investigation. Petitioner orally moved for a reconsideration, to
no avail. Petitioner assailed the decision of the City Prosecutor before the Court
of Appeals on a petition for certiorari, prohibition and mandamus. After the Court
of Appeals dismissed said petition, petitioner went to this Court, still asserting
that he should be accorded a regular preliminary investigation.
Furthermore, petitioner and his counsel cannot be faulted for their refusal to
comply with the City Prosecutor's directive to appear before him in the afternoon
of September 17, 1997 for preliminary investigation. As stated above, petitioner's

counsel appeared before the City Prosecutor earlier that day and specifically
demanded a regular preliminary investigation for his client. The City Prosecutor,
however, insisted that petitioner was entitled only to an inquest investigation
which he scheduled in the afternoon of the same day. Petitioner and his counsel
refused to submit to such investigation as it might be construed as a waiver of
petitioner's right to a regular preliminary investigation.
Our ruling is not altered by the fact that petitioner has been arraigned on October
14, 1997. The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at
arraignment. 18 Petitioner, in this case, has been actively and consistently
demanding a regular preliminary investigation even before he was charged in
court. Also, petitioner refused to enter a plea during the arraignment because
there was a pending case in this Court regarding his right to avail of a regular
preliminary investigation. 19 Clearly, the acts of petitioner and his counsel are
inconsistent with a waiver. Preliminary investigation is part of procedural due
process. It cannot be waived unless the waiver appears to be clear and informed.
The next question is whether petitioner should be released from detention
pending the investigation.
We rule in the negative.
The records show that on September 17, 1997, two informations were filed
against petitioner for kidnapping and serious illegal detention. 20 Executive Judge
Priscila Agana issued a warrant of arrest on September 19, 1997. 21 Petitioner
was arrested on September 22, 1997 by virtue of said warrant. We held
in Sanchez v. Demetriou 22that the filing of charges and the issuance of the
warrant of arrest against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect.
The Court ruled:
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over
the person of the petitioner by virtue of the warrant of arrest it issued on
August 26, 1993 against him and the other accused in connection with

the rape-slay cases. It was belated, to be sure, but it was nonetheless


legal.
Even on the assumption that no warrant was issued at all, we find that
the trial court still lawfully acquired jurisdiction over the person of the
petitioner. The rule is that if the accused objects to the jurisdiction of the
court over his person, he may move to quash the information, but only
on that ground. If, as in this case, the accused raises other grounds in
the motion to quash, he is deemed to have waived that objection and to
have submitted his person to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest against
Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634
to 93-124637 for violation of R.A. No. 6713. Pending the issuance of the
warrant of arrest for the rape-slay cases, this first warrant served as the
initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and
the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny
him the right to be released because of such defect. Applicable by
analogy to the case at bar is Rule 102 Section 4 of the Rules of Court
that:
"Sec. 4. When writ is not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not
be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held
to authorize the discharge of a person charged with or convicted
of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment.
In one case, the petitioner sued on habeas corpus on the ground that
she had been arrested by virtue of a John Doe warrant. In their return,

the respondents declared that a new warrant specifically naming her had
been issued, thus validating her detention. While frowning at the tactics
of the respondents, the Court said:
The case has, indeed, become moot and academic inasmuch as
the new warrant of arrest complies with the requirements of the
Constitution and the Rules of Court regarding the particular
description of the person to be arrested. While the first warrant
was unquestionably void, being a general warrant, release of the
petitioner for that reason will be a futile act as it will be followed by
her immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court more
recently in the Umil case. 23 (citations omitted)

We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation


Center is legal in view of the information and the warrant of arrest against him.
The absence of a preliminary investigation will not justify petitioner's release
because such defect did not nullify the information and the warrant of arrest
against him. 24 We ruled in Sanciangco, Jr. v. People: 25
The absence of preliminary investigations does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the
information or otherwise render it defective; but, if there were no
preliminary investigation and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of
dismissing the information, should conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted. 26

As regards petitioner's motion to change the venue and the authority to conduct
the preliminary investigation, we are constrained to dismiss the same for lack of
jurisdiction. The holding of a preliminary investigation is a function of the
Executive Department and not of the Judiciary. 27 Petitioner should therefore
address their plea to the Department of Justice that has control and supervision
over the conduct of preliminary investigations.

Nonetheless, even if the Court had jurisdiction over the issue, petitioner's motion
should still be denied because it failed to allege and prove that the City
Prosecutor of Cebu has been actually affected by the publicity. We held in Webb
v. De Leon: 28
Be that as it may, we recognize that pervasive and prejudicial publicity
under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, inMartelino, et al. vs. Alejandro, et al., we held that
to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not
simply that they might be, by the barrage in publicity. In the case at bar,
we find nothing in the records that will prove that the tone and content of
the publicity that attended the investigation of petitioners fatally infected
the fairness and impartiality of the DOJ Panel. Petitioners cannot just
rely on the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26page Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which
they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias
resulting from their bombardment of prejudicial publicity. 29

We further held in People v. Teehankee: 30


We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not incompatible to a free press. To be
sure, responsible reporting enhances an accused's right to a fair trial for,

as well pointed out, "a responsible press has always been regarded as
the handmaiden of effective judicial administration, especially in the
criminal field . . . The press does not simply publish information about
trials but guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public scrutiny
and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of the appellant was given a day-today, gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For
one, it is impossible to seal the minds of members of the bench from pretrial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as they happen
straight to our breakfast tables and to our bedrooms. These news form
part of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lose their
impartiality. Criticisms against the jury system are mounting and Mark
Twain's wit and wisdom put them all in better perspective when he
observed: "When a gentleman of high social standing, intelligence, and
probity swears that testimony given under the same oath will outweigh
with him, street talk and newspaper reports based upon mere hearsay,
he is worth a hundred jurymen who will swear to their own ignorance and
stupidity . . . . Why could not the jury law be so altered as to give men of
brains and honesty an equal chance with fools and miscreants?" Our
judges are learned in the law and trained to disregard off-court evidence
and on-camera performances of parties to a litigation. Their mere
exposure to publications and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of
the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et al.,
we rejected this standard of possibility of prejudice and adopted the test
of actual prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been

unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the
extensive media coverage of the pre-trial and trial of his case.
The totality of circumstances of the case does not prove this actual bias
and he has not discharged the burden. 31

We likewise dismiss the complaint filed by Judge Martin A Ocampo against


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

LLjur

|||

(Larranaga v. Court of Appeals, G.R. No. 130644 (Resolution), [March 13,

1998], 351 PHIL 75-93)

14
[G.R. No. 170288. September 22, 2006.]
PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E.
TRABAJO, Municipal Vice Mayor and Presiding Officer of the
Sangguniang Bayan; FULGENCIO V. PAA, Municipal
Treasurer; TACIANA B. ESPEJO, Municipal Budget Officer;
and SB Members: RUFINO G. ADLAON, TITO R. MONTAJES,
MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B.
TORREFRANCA, VICENTE A. TORREFRANCA,
JR., petitioners, vs. HON. JACINTO M. DELA CRUZ, JR., Asst.
Special Prosecutor I; HON. CORNELIO L. SONIDO, Acting
Director, Prosecution Bureau IV; HON. ROBERT E. KALLOS,
Deputy Special Prosecutor; HON. DENNIS M. VILLA IGNACIO,
The Special Prosecutor; HON. WENDELL E. BARRERASSULIT, Acting Director, Case Assessment, Review and Reinvestigation Bureau; and OFFICE OF THE SPECIAL
PROSECUTOR, public respondents.
VALERIANO U. NADALA, ARLENE PAINAGANPALGAN, private respondents.
DECISION
YNARES-SANTIAGO, J :
p

This Petition for Certiorari under Rule 65 of the Rules of Court assails the
Memorandum 1 dated April 28, 2004 of the Office of the Special Prosecutor,

Office of the Ombudsman, recommending that petitioners be charged with


violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner Pedro E.
Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the
Resolution 2 dated October 19, 2005 denying petitioners' motion for
reconsideration.
The antecedent facts are as follows:
By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of
Carmen, Bohol appropriated the amount of P450,000.00 for the purchase of a
road roller for the municipality. However, on November 16, 2001, the Municipal
Development Council through Resolution No. 3 recommended that the amount of
P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan
Modesto Bernaldez Street. 3 The proposed realignment was included in the
December 21, 2001 agenda of the Sangguniang Bayan of Carmen but discussion
thereon was deferred.
On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paa, issued a
Certificate of Availability of Funds for the project. Thereafter, the Office of the
Municipal Engineer prepared a Program of Works and Cost Estimates duly
noted/approved by Municipal Budget Officer Taciana B. Espejo and Mayor
Budiongan.
aDHCEA

Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor
Budiongan issued the Notice of Award and Notice to Commence Work in favor of
Herbert Malmis General Merchandise and Contractor, Inc. who emerged as the
lowest complying bidder. On March 22, 2002, the Sangguniang Bayan passed
Resolution No. 60, 4series of 2002, authorizing Mayor Budiongan to sign and
enter into contract with Malmis relative to the above project in the amount of
P339,808.00. With such authority, Malmis commenced with the project.
Thereafter, it was discovered that there was yet no ordinance approving the
realignment of the funds. Thus, on May 17, 2002, the Sangguniang Bayan
passed Ordinance No. 8, 5 series of 2002, approving the realignment of the fund.
On June 14, 2002, Malmis was paid the contract price.
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala
filed a complaint 6 against the petitioners before the Office of the Deputy

Ombudsman for Visayas alleging illegality in the conduct of the bidding, award
and notice to commence work since there was no fund appropriated for the
purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found
probable cause and recommended the filing of an information for violation of
Article 220 7 of the Revised Penal Code against the petitioners. However, the
complaint against Hermosila Logrono, Desiderio Gudia, Jr. and Herbert Malmis
was dismissed for lack of merit. 8
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the
Office of the Special Prosecutor, issued the assailed Memorandum dated April
28, 2004, modifying the charge from violation of Article 220 of the Revised Penal
Code to (1) violation of Section 3(e) of R.A. No. 3019 against petitioners for
allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h)
of R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly
having financial or pecuniary interest in a contract or transaction in connection
with which he intervenes or takes part in his official capacity."
DaAIHC

Thus, two separate Informations were filed before the Sandiganbayan (1) for
violation of Section 3(e) of R.A. No. 3019 against the petitioners docketed as
Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No.
3019 against petitioner Budiongan docketed as Criminal Case No. 28076.
Thereafter, petitioners filed a Motion to Quash 9 the information charging them
with violation of Sec. 3(e) of R.A. No. 3019. In a Resolution 10 dated June 10,
2005, the Sandiganbayan granted the motion to quash and remanded Criminal
Case No. 28075 to the Office of the Ombudsman for amendment of the
Information. It held that although Malmis benefited from the contract, the same is
not unwarranted considering that the project was implemented, executed and
completed.
On June 27, 2005, an Amended Information 11 was filed charging petitioners with
violation of Sec. 3(e) of R.A. No. 3019, alleging that petitioners, by prematurely
awarding to Malmis the project despite the absence of funds specifically
appropriated for such purpose, and thereafter paying the contract price from the

Municipal Treasury which was originally appropriated for the purchase of a road
roller, caused damage and undue injury to the government.
Finding that the Amended Information contains all the material averments
necessary to make out a case for the first mode of violating Section 3(e) of R.A.
No. 3019, i.e.,causing any undue injury to any party, including the government,
the Sandiganbayan admitted the Amended Information in its Resolution dated
August 18, 2005. 12
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of
Court to File Motion for Reinvestigation 13 arguing that the above Informations
were filed without affording them the opportunity to file counter-affidavits to
answer/rebut the modified charges. On September 20, 2005, the Sandiganbayan
issued a Resolution 14 denying the motion insofar as Criminal Case No. 28076 is
concerned. It held that it is too late in the day to remand the case for
reinvestigation considering that Budiongan had already been arraigned and the
case had long been set for pre-trial proceedings, with both parties having filed
their respective briefs. As regards Criminal Case No. 28075, the Sandiganbayan
noted that although the conduct of the preliminary investigation was regular,
petitioners however were not given the opportunity to seek reconsideration of the
modified charges. Thus, it granted leave to the petitioners to file with the Office of
the Special Prosecutor a motion for reconsideration (not a motion for
reinvestigation) of the said office's Memorandum dated April 28, 2004.
ADaSEH

Petitioners filed a Motion for Reconsideration with the Office of the Special
Prosecutor which was denied for lack of merit in the Resolution dated October
19, 2005.
Hence, this petition raising the following issues:
I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN REJECTING THE FINDINGS AND
AMENDING/MODIFYING THE RESOLUTION OF THE GRAFT
INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN
FILING THE INFORMATION FOR VIOLATION OF SEC. 3(e)
OF RA 3019 WITHOUT AFFORDING PETITIONERS THE

OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN


A RE-INVESTIGATION;
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A REINVESTIGATION HAS VIOLATED PETITIONERS' RIGHT TO
DUE PROCESS;
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28,
2004 AND OCTOBER 19, 2005 FINDING PROBABLE CAUSE
FOR VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN
PETITIONERS; and
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN FILING THE INFORMATION FOR VIOLATION
OF SEC. 3(e) OF RA 3019 AGAINST PETITIONERS IN THE
SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.

Petitioners maintain that the modification of the charge from violation of Article
220 of the Revised Penal Code to violation of Sections 3(e) and 3(h) of R.A. No.
3019denied their rights to due process since they were not given the opportunity
to answer and present evidence on the new charge in a preliminary investigation.
Furthermore, the petitioners argue that public respondents committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the
challenged resolutions finding probable cause for violation of R.A. No. 3019.
TaCDAH

The petition lacks merit.


The right to a preliminary investigation is not a constitutional right, but is merely a
right conferred by statute. The absence of a preliminary investigation does not
impair the validity of the Information or otherwise render the same defective. It
does not affect the jurisdiction of the court over the case or constitute a ground
for quashing the Information. 15 If absence of a preliminary investigation does not
render the Information invalid nor affect the jurisdiction of the court over the case,
then the denial of a motion for reinvestigation cannot likewise invalidate the
Information or oust the court of its jurisdiction over the case.

Petitioners were not deprived of due process because they were afforded the
opportunity to refute the charges by filing their counter-affidavits. The modification
of the offense charged did not come as a surprise to the petitioners because it
was based on the same set of facts and the same alleged illegal acts. Moreover,
petitioners failed to aver newly discovered evidence nor impute commission of
grave errors or serious irregularities prejudicial to their interest to warrant a
reconsideration or reinvestigation of the case as required under Section 8, Rule
III of the Rules of Procedure of the Office of the Ombudsman. 16 Thus, the
modification of the offense charged, even without affording the petitioners a new
preliminary investigation, did not amount to a violation of their rights.
Furthermore, the right to preliminary investigation is deemed waived when the
accused fails to invoke it before or at the time of entering a plea at
arraignment. 17Petitioner Budiongan was arraigned in Criminal Case No. 28076
on March 28, 2005. He was also arraigned together with the rest of the
petitioners under the Amended Information in Criminal Case No. 28075 on
December 2, 2005.
AHaETS

The purpose of a preliminary investigation is merely to determine whether a crime


has been committed and whether there is probable cause to believe that the
person accused of the crime is probably guilty thereof and should be held for
trial. 18 A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by the
suspect. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt." 19
The Office of the Special Prosecutor is an integral component of the Ombudsman
and is under the latter's supervision and control. Thus, whatever course of action
that the Ombudsman may take, whether to approve or to disapprove the
recommendation of the investigating prosecutor, is but an exercise of his
discretionary powers based upon constitutional mandate. Generally, courts
should not interfere in such exercise. It is beyond the ambit of this Court to review
the exercise of discretion of the Ombudsman in prosecuting or dismissing a
complaint filed before it, save in cases where there is clear showing of grave

abuse of discretion amounting to lack or excess of jurisdiction on the part of the


Ombudsman. 20 Absent any showing of arbitrariness on the part of the
prosecutor or any other officer authorized to conduct preliminary investigation, as
in the instant case, courts as a rule must defer to said officer's finding and
determination of probable cause, since the determination of the existence of
probable cause is the function of the prosecutor. 21
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's
resolution denying petitioners' motion for reconsideration since there is nothing to
substantiate petitioners' claim that it gravely abused its discretion in ruling that
there was no need to conduct a reinvestigation of the case. 22
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The
assailed Memorandum of the Office of the Special Prosecutor, Office of the
Ombudsman, dated April 28, 2004 finding probable cause that petitioners
violated Sections 3(e) and 3(h) of Republic Act No. 3019 and the Resolution
dated October 19, 2005 denying petitioners' Motion for Reconsideration, are
hereby AFFIRMED.
SO ORDERED.
|||

(Budiongan, Jr. v. Dela Cruz, Jr., G.R. No. 170288, [September 22, 2006], 534

PHIL 47-57)

15
[G.R. Nos. 71404-09. October 26, 1988.]
HERMILO RODIS, SR., petitioner, vs. THE SANDIGANBAYAN, and
PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing & Associates for petitioner.
The Solicitor General for respondents.

SYLLABUS
1. REMEDIAL LAW; 1985 RULES ON CRIMINAL PROCEDURE; PRELIMINARY
INVESTIGATION; PRESENCE OF ACCUSED, NOT A CONDITION SINE QUA
NON TO THE VALIDITY OF THE PROCEEDINGS. Under Section 3, subsection (d) of Rule 112 of the 1985 Rules on Criminal Procedure, "if the
respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall base his
resolution on the evidence presented by the complainant." It is to be noted that
this provision does not require as a condition sine qua non to the validity of the
proceedings the presence of the accused for as long as efforts to reach him were
made, and an opportunity to controvert the evidence of the complainant is
accorded him. The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of offenses by hiding
themselves or by employing dilatory tactics.
2. ID.; ID.; SEC. 3, SUB-SECTION (d) OF RULE 112; SHOULD NOT BE
APPLIED STRICTLY AGAINST ACCUSED. Considering that petitioner has
voluntarily appeared before the respondent Sandiganbayan in connection with
the criminal cases in question and has appeared in other preliminary investigation
of other PHILFINANCE charges filed in various fiscals' offices and the Ministry
(now Department) of Justice, it is apparent that the non-service of the subpoena
upon him was not of his own doing or liking. To apply the full force and effect of
section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure
would, to our mind, greatly prejudice him.
3. ID.; ID.; ABSENCE OF PRELIMINARY INVESTIGATION; OUTRIGHT
DISMISSAL OF INFORMATION; SHOULD NOT BE DONE WHERE THE
COURT'S ATTENTION WAS CALLED TO THE FACT THAT NO SUCH
INVESTIGATION WAS CONDUCTED. While the "absence of preliminary
investigations does not affect the court's jurisdiction over the case (n)or do they
impair the validity of the information or otherwise render it defective, but, if there
were no preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing
the information, should conduct such investigation, order the fiscal to conduct it or

remand the case to the inferior court so that the preliminary investigation may be
conducted. In this case, the Tanodbayan has the duty to conduct the said
investigation.
DECISION
FERNAN, C.J. :
p

This is a petition for certiorari with prayer for a writ of preliminary injunction
seeking to annul the Resolution 1 of the Sandiganbayan dated July 15, 1985
denying herein petitioner's Motion to Quash the Informations in Criminal Cases
Nos. 10389, 10390, 10391, 10393 and 10394 pending before said court and to
enjoin the arraignment, pre-trial and trial herein.
cdphil

The antecedents are as follows:


On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the
Philippine Underwriters Finance Corporation (PHILFINANCE), together with
some other persons, was charged before the Sandiganbayan in separate
informations docketed therein as Criminal Cases Nos. 10389, 10390, 10391,
10393 and 10394 with five (5) counts of violation of Section 3(b) of Republic Act
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
On May 31, 1985, petitioner filed a motion to quash said informations as against
him on the ground of lack of preliminary investigation, with the alternative prayer
that the "issue and/or enforcement of the warrant of arrests as against him be
held in abeyance while he seeks a reinvestigation by the Tanodbayan pursuant
to his right of (sic) preliminary investigation." 2
In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3,
Rule 117 of the 1985 Rules on Criminal Procedure enumerating the grounds for a
motion to quash. It argued that since lack of preliminary investigation is not
among those enumerated thereunder, the motion to quash on this ground should
be denied for lack of merit and instead, petitioner should be ordered to file his

Petition for Reinvestigation and/or Motion for Reconsideration in accordance


with Section 13 of the Revised Rules of Procedure of the Tanodbayan. 3
Petitioner filed a Reply to the Opposition controverting the prosecution's claim
that lack of preliminary investigation is not a ground for quashing the information;
but manifesting that he would file a petition for re-investigation with the
Tanodbayan as suggested. 4 This he did, on June 24, 1985.
prcd

On July 15, 1985, while petitioner's petition for reinvestigation was pending action
by a the Tanodbayan, the Sandiganbayan promulgated the assailed resolution
denying petitioner's motion to quash for lack of merit, stating:
". . . this Court is of the considered opinion that the alleged absence of
preliminary investigation with respect to the accused-movant (herein
petitioner) or his inability to participate in the preliminary investigation for
the reason that he was not duly served with a subpoena is not a proper
ground for a motion to quash. If the accused was not afforded due
preliminary investigation, the proper remedy for him is to file a Petition for
Reinvestigation with the Office of the Tanodbayan, pursuant to Section
(13) of Administrative Order No. 111 of the Revised Rules of Procedure
of the Tanodbayan, promulgated on December 1, 1979." 5

On the premise that no appeal or any plain and speedy remedy in the ordinary
course of law will prove adequate under the circumstances obtaining in the case
at bar arraignment, pre-trial and trial having been set on August 26, 27 and 28,
1985 and on the allegation that in denying his motion to quash, respondent
Sandiganbayan had acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, petitioner brought the instant petition.
Cdpr

On August 1, 1985, the Court issued a Temporary Restraining Order enjoining


the respondent Sandiganbayan from proceeding with the arraignment, pre-trial
and trial of Criminal Cases Nos. 10389, 10390, 10391, 10392, 6 10393 and
10394. 7
Petitioner contends that while it may be true that lack of preliminary investigation
neither affects the jurisdiction of the court nor impairs the validity of the
information filed, nonetheless such lack of preliminary investigation affects the
regularity of the proceedings which led to the filing of the information, such that in

several cases, the Court had ordered the quashal of the information on said
ground; and that although lack of preliminary investigation is not enumerated as
one of the grounds for a motion to quash, the Sandiganbayan can nevertheless
order the quashal of the information pursuant to its inherent power to amend and
control its processes so as to make them conformable to law and justice. 8 He
further claims that given the chance to be heard on preliminary investigation, he
will demonstrate to the Tanodbayan that he had no participation in the
transactions complained of, except in one where he merely approved for
reimbursement representation expense incurred by one subordinate to him, the
Executive Vice-President, and after it had been approved by one superior to him,
the Vice-Chairman of the Executive Committee and Chief Executive Officer of the
PHILFINANCE.
Respondent People of the Philippines on the other hand avers that as petitioner
does not dispute that a preliminary investigation was indeed conducted, what he
is really protesting against is the lost opportunity to participate therein due to the
alleged failure of the Tanodbayan to serve a subpoena upon him. It is however,
contended that this alleged failure did not affect the regularity of the preliminary
investigation as the Tanodbayan is justified under Section 3, Rule 112 of the 1985
Rules of Criminal Procedure in proceeding with the preliminary investigation after
an attempt to subpoena petitioner at the latter's known address proved
unavailing, and in basing its resolution on the evidence presented by the
complainant.
LibLex

The analysis of respondent People, thru the Solicitor General, as to the real
nature of the controversy at bar is correct. It is not disputed that a preliminary
investigation was conducted by the Tanodbayan prior to the filing of the
informations. Petitioner, however, was not able to participate therein as the
subpoena addressed to him at PHILFINANCE his last known address, was
returned "unserved," petitioner having already severed his employment with said
company at the time of service. As petitioner reportedly left PHILFINANCE under
most unfriendly circumstances, PHILFINANCE did not give the process server his
residence address on record with it.
Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal
Procedure, "if the respondent cannot be subpoenaed, or if subpoenaed, does not

submit counter-affidavits within the ten (10) day period, the investigating officer
shall base his resolution on the evidence presented by the complainant." It is to
be noted that this provision does not require as a condition sine qua non to the
validity of the proceedings the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert the evidence of the
complainant is accorded him. The obvious purpose of the rule is to block
attempts of unscrupulous respondents to thwart the prosecution of offenses by
hiding themselves or by employing dilatory tactics.
cdll

Considering that petitioner has voluntarily appeared before the respondent


Sandiganbayan in connection with the criminal cases in question and has
appeared in other preliminary investigation of other PHILFINANCE charges filed
in various fiscals' offices and the Ministry (now Department) of Justice, it is
apparent that the non-service of the subpoena upon him was not of his own
doing or liking. To apply the full force and effect of section 3, sub-section (d) of
Rule 112 of the 1985 Rules on Criminal Procedure would, to our mind, greatly
prejudice him.
LLjur

It is worthwhile repeating that the avowed purposes of a preliminary investigation


are "to secure the innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of crime, from the trouble,
expense and anxiety of a public trial, and also to protect the state from useless
and expensive trials. 9 And while the "absence of preliminary investigations does
not affect the court's jurisdiction over the case (n)or do they impair the validity of
the information or otherwise render it defective, but, if there were no preliminary
investigations and the defendants, before entering their plea, invite the attention
of the court to their absence, the court, instead of dismissing the information,
should conduct such investigation, order the fiscal to conduct it or remand the
case to the inferior court so that the preliminary investigation may be
conducted. 10 In this case, the Tanodbayan has the duty to conduct the said
investigation. 11
Thus, although the Sandiganbayan was correct in ruling that the absence of a
preliminary investigation is not a ground for quashing an information, it should
have held the proceedings in the criminal cases in abeyance pending resolution

by the Tanodbayan of petitioner's petition for reinvestigation, as alternatively


prayed for by him in his motion to quash.
During the pendency of the case at bar, petitioner manifested to the Court that in
a Joint Order dated September 26, 1985, Tanodbayan Special Prosecutors Roger
C. Berbano, Sr. and Eleuterio F. Guerrero had recommended that the separate
petitions for reinvestigation filed by petitioner and his co-accused be given due
course by the Tanodbayan and that said special prosecutors be given clearance
and authority to conduct such reinvestigation. Although it appears that these
recommendations were approved by then Tanodbayan Bernardo P. Fernandez on
October 14, 1985, 12 no further report on this matter has reached the Court. As
we cannot assume that the reinvestigation was indeed conducted as would
render the instant petition moot and academic, and considering the importance of
the issue involved, we deemed it proper to decide the petition on the merits.
WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated
July 15, 1985 in Criminal Cases No. 10389, 10390, 10391, 10393 and 10394 is
hereby affirmed, but respondent Sandiganbayan is ordered to hold in abeyance
the proceedings therein with respect to petitioner, subject to the outcome of the
reinvestigation of the Tanodbayan of the aforesaid cases. The Temporary
Restraining Order issued by the Court of August 1, 1985 is deemed superseded
by this directive.
SO ORDERED.
|||

(Rodis, Sr. v. Sandiganbayan, G.R. Nos. 71404-09, [October 26, 1988], 248

PHIL 854-861)

16
[G.R. No. 216920. January 13, 2016.]
GIRLIE
M.
QUISAY, petitioner, vs. PEOPLE
PHILIPPINES, respondent.

OF

THE

DECISION
PERLAS-BERNABE, J :
p

Assailed in this petition for review on certiorari 1 are the


Decision 2 dated October 10, 2014 and the Resolution 3 dated January 30,
2015 of the Court of Appeals (CA) in CA-G.R. SP No. 131968, which affirmed
the denial of petitioner Girlie M. Quisay's (petitioner) Motion to Quash before
the Regional Trial Court of Makati, Branch 144 (RTC).
The Facts
On December 28, 2012, the Office of the City Prosecutor of Makati City
(OCP-Makati) issued a Pasiya 4 or Resolution finding probable cause against
petitioner for violation of Section 10 of Republic Act No. (RA)
7610, 5 otherwise known as the "Special Protection of Children Against
Abuse, Exploitation and Discrimination Act." Consequently, a Pabatid
Sakdal 6 or Information was filed before the RTC on January 11, 2013
charging petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the Information
against her on the ground of lack of authority of the person who filed the same
before the RTC. In support of her motion, petitioner pointed out that
the Pasiya issued by the OCP-Makati was penned by Assistant City
Prosecutor Estefano H. De La Cruz (ACP De La Cruz) and approved by
Senior Assistant City Prosecutor Edgardo G. Hirang (SACP Hirang), while
the Pabatid Sakdal was penned by ACP De La Cruz, without any approval
from any higher authority, albeit with a Certification claiming that ACP De La
Cruz has prior written authority or approval from the City Prosecutor in filing
the said Information. In this regard, petitioner claimed that nothing in the
aforesaid Pasiya and Pabatid Sakdal would show that ACP De La Cruz and/or
SACP Hirang had prior written authority or approval from the City Prosecutor
to file or approve the filing of the Information against her. As such, the
Information must be quashed for being tainted with a jurisdictional defect that
cannot be cured. 7

In its Comment and Opposition, 8 the OCP-Makati countered that the


review prosecutor, SACP Hirang, was authorized to approve
the Pasiya pursuant to OCP-Makati Office Order No. 32. 9 Further, it
maintained that the Pabatid Sakdal was filed with the prior approval of the City
Prosecutor as shown in the Certification in the Information itself. 10
The RTC Ruling
In an Order 11 dated May 8, 2013, the RTC denied petitioner's motion to
quash for lack of merit. It found the Certification attached to the Pabatid
Sakdal to have sufficiently complied with Section 4, Rule 112 of the Rules of
Court which requires the prior written authority or approval by, among others,
the City Prosecutor, in the filing of Informations. 12
Petitioner moved for reconsideration, 13 which was, however, denied in
an Order 14 dated July 10, 2013. Aggrieved, petitioner elevated the matter to
the CA viaa petition for certiorari. 15
The CA Ruling
In a Decision 16 dated October 10, 2014, the CA affirmed the RTC
ruling. It held that pursuant to Section 9 of RA 10071, 17 otherwise known as
the "Prosecution Service Act of 2010," as well as OCP-Makati Office Order
No. 32, the City Prosecutor of Makati authorized SACP Hirang to approve the
issuance of, inter alia, resolutions finding probable cause and the filing of
Informations before the courts. As such, SACP Hirang may, on behalf of the
City Prosecutor, approve the Pasiyawhich found probable cause to indict
petitioner of violation of Section 10 of RA 7610. 18
aDSIHc

Further, it held that the Certification made by ACP De La Cruz in


the Pabatid Sakdal clearly indicated that the same was filed after the requisite
preliminary investigation and with the prior written authority or approval of the
City Prosecutor. In this regard, the CA opined that such Certification enjoys
the presumption of regularity accorded to a public officer's performance of
official functions, in the absence of convincing evidence to the contrary. 19
Undaunted, petitioner moved for reconsideration, 20 but was denied in a
Resolution 21 dated January 30, 2015; hence, this petition.
The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA
correctly held that the RTC did not gravely abuse its discretion in dismissing
petitioner's motion to quash.
The Court's Ruling
The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal
Procedure states that the filing of a complaint or information requires a prior
written authority or approval of the named officers therein before a complaint
or information may be filed before the courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its
review. If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He
shall certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the complainant
and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an opportunity
to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from
their receipt thereof and shall immediately inform the parties of such
action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial orcity prosecutor or chief state prosecutor
or the Ombudsman or his deputy.
xxx xxx xxx (Emphases and underscoring supplied)

Thus, as a general rule, complaints or informations filed before the


courts without the prior written authority or approval of the foregoing
authorized officers renders the same defective and, therefore, subject to
quashal pursuant to Section 3 (d), Rule 117 of the same Rules, to wit:
SECTION 3. Grounds. The accused may move to quash the
complaint or information on any of the following grounds:
xxx xxx xxx
(d) That the officer who filed the information had no
authority to do so;
xxx xxx xxx (Emphasis and underscoring supplied)

In this relation, People v. Garfin 22 firmly instructs that the filing of an


Information by an officer without the requisite authority to file the same
constitutes a jurisdictional infirmity which cannot be cured by silence, waiver,
acquiescence, or even by express consent. Hence, such ground may be
raised at any stage of the proceedings. 23
In the case at bar, the CA affirmed the denial of petitioner's motion to
quash on the grounds that: (a) the City Prosecutor of Makati may delegate its
authority to approve the filing of the Pabatid Sakdal pursuant to Section 9
of RA 10071, as well as OCP-Makati Office Order No. 32; and (b) the Pabatid
Sakdal contained a Certification stating that its filing before the RTC was with
the prior written authority or approval from the City Prosecutor.
ETHIDa

The CA correctly held that based on the wordings of Section 9 of RA


10071, which gave the City Prosecutor the power to "[i]nvestigate
and/or cause to be investigated all charges of crimes, misdemeanors and
violations of penal laws and ordinances within their respective
jurisdictions, and have the necessary information or complaint prepared
or made and filed against the persons accused," 24 he may indeed delegate
his power to his subordinates as he may deem necessary in the interest of the
prosecution service. The CA also correctly stressed that it is under the
auspice of this provision that the City Prosecutor of Makati issued OCP-Makati
Office Order No. 32, which gave division chiefs or review prosecutors
"authority to approve or act on any resolution, order, issuance, other action,

and any information recommended by any prosecutor for approval," 25 without


necessarily diminishing the City Prosecutor's authority to act directly in
appropriate cases. 26 By virtue of the foregoing issuances, the City Prosecutor
validly designated SACP Hirang, Deputy City Prosecutor Emmanuel D.
Medina, and Senior Assistant City Prosecutor William Celestino T. Uy as
review prosecutors for the OCP-Makati. 27
In this light, the Pasiya or Resolution finding probable cause to indict
petitioner of the crime charged, was validly made as it bore the approval of
one of the designated review prosecutors for OCP-Makati, SACP Hirang, as
evidenced by his signature therein.
Unfortunately, the same could not be said of the Pabatid Sakdal or
Information filed before the RTC, as there was no showing that it was
approved by either the City Prosecutor of Makati or any of the OCP-Makati's
division chiefs or review prosecutors. All it contained was a Certification from
ACP De La Cruz which stated, among others, that "DAGDAG KO PANG
PINATUTUNAYAN na ang paghahain ng sakdal na ito ay may nakasulat na
naunang pahintulot o pagpapatibay ng Panlunsod na Taga-Usig" 28 which
translates to "and that the filing of the Information is with the prior authority
and approval of the City Prosecutor."
In the cases of People v. Garfin, 29 Turingan v. Garfin, 30 and Tolentino
v. Paqueo, 31 the Court had already rejected similarly-worded certifications,
uniformly holding that despite such certifications, the Informations were
defective as it was shown that the officers filing the same in court either lacked
the authority to do so or failed to show that they obtained prior written
authority from any of those authorized officers enumerated in Section 4, Rule
112 of the 2000 Revised Rules of Criminal Procedure.
Here, aside from the bare and self-serving Certification, there was no
proof that ACP De La Cruz was authorized to file the Pabatid Sakdal or
Information before the RTC by himself. Records are bereft of any showing that
the City Prosecutor of Makati had authorized ACP De La Cruz to do so by
giving him prior written authority or by designating him as a division chief or
review prosecutor of OCP-Makati. There is likewise nothing that would indicate
that ACP De La Cruz sought the approval of either the City Prosecutor or any

of those authorized pursuant to OCP-Makati Office Order No. 32 in filing


the Pabatid Sakdal. Quite frankly, it is simply baffling how ACP De La Cruz
was able to have the Pasiya approved by designated review prosecutor SACP
Hirang but failed to have the Pabatid Sakdal approved by the same person or
any other authorized officer in the OCP-Makati.
In view of the foregoing circumstances, the CA erred in according
the Pabatid Sakdal the presumption of regularity in the performance of official
functions solely on the basis of the Certification made by ACP De La Cruz
considering the absence of any evidence on record clearly showing that ACP
De La Cruz: (a) had any authority to file the same on his own; or (b) did seek
the prior written approval from those authorized to do so before filing the
Information before the RTC.
In conclusion, the CA erred in affirming the RTC's dismissal of
petitioner's motion to quash as the Pabatid Sakdal or Information suffers from
an incurable infirmity that the officer who filed the same before the RTC had
no authority to do so. Hence, the Pabatid Sakdal must be quashed, resulting
in the dismissal of the criminal case against petitioner.
As a final note, it must be stressed that "[t]he Rules of Court governs
the pleading, practice, and procedure in all courts of the Philippines. For the
orderly administration of justice, the provisions contained therein should be
followed by all litigants, but especially by the prosecution arm of the
Government." 32
WHEREFORE, the petition is GRANTED. The Decision dated October
10, 2014 and the Resolution dated January 30, 2015 of the Court of Appeals
in CA-G.R. SP No. 131968 are hereby REVERSED and SET ASIDE.
Accordingly, the Information against petitioner Girlie M. Quisay
is QUASHED and the criminal case against her isDISMISSED.
cSEDTC

SO ORDERED.
|||

(Quisay v. People, G.R. No. 216920, [January 13, 2016])

17
[G.R. No. 147932. January 25, 2006.]

LAILA G. DE OCAMPO, petitioner, vs. THE HONORABLE


SECRETARY OF JUSTICE, MAGDALENA B. DACARRA, and
ERLINDA P. ORAYAN, respondents.
Pedro R. Lazo for petitioner.
The Solicitor General for public respondent.
SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;


CLARIFICATORY HEARING IS OPTIONAL ON THE PART OF THE
INVESTIGATING OFFICER. A clarificatory hearing is not indispensable during
preliminary investigation. Rather than being mandatory, a clarificatory hearing is
optional on the part of the investigating officer as evidenced by the use of the
term "may" in Section 3 (e) of Rule 112. This provision states: (e) If the
investigating officer believes that there are matters to be clarified he may set a
hearing to propound clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to be present but
without the right to examine or cross-examine. . . . The use of the word "may" in a
statute commonly denotes that it is directory in nature. The term "may" is
generally permissive only and operates to confer discretion. Under Section 3 (e)
of Rule 112, it is within the discretion of the investigation officer whether to set the
case for further hearings to clarify some matters.
2. ID.; ID.; ID.; NATURE AND PURPOSE THEREOF EXPLAINED. Petitioner
was not deprived of due process since both parties were accorded equal rights in
arguing their case and presenting their respective evidence during the preliminary
investigation. Due process is merely an opportunity to be heard. Petitioner cannot
successfully invoke denial of due process since she was given the opportunity of
a hearing. She even submitted her counter-affidavit to the investigating
prosecutor on 18 January 2000. Preliminary investigation is merely inquisitorial. It
is not a trial of the case on the merits. Its sole purpose is to determine whether a
crime has been committed and whether the respondent is probably guilty of the

crime. It is not the occasion for the full and exhaustive display of the parties'
evidence. Hence, if the investigating prosecutor is already satisfied that he can
reasonably determine the existence of probable cause based on the parties'
evidence thus presented, he may terminate the proceedings and resolve the
case.
3. ID.; ID.; ID.; SECURING AUTOPSY REPORT DURING PRELIMINARY
INVESTIGATION IS NOT PROHIBITED. Though the autopsy report is not part
of the parties' evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring the
investigating prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of Ronald's death,
can either absolve or condemn the petitioner. Unfortunately for petitioner, the
investigating prosecutor found that the autopsy report bolstered complainants'
allegations.
4. ID.; ID.; ID.; PROBABLE CAUSE, DEFINED; EXEMPLIFIED IN CASE AT
BAR. Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind that a crime has been committed
and the respondent is probably guilty of the crime. In the present case, Ronald, a
nine year-old student, died five days after his teacher, petitioner in this case,
allegedly banged his head against that of his classmate Lorendo. There is
nothing in the records showing petitioner's specific denial of the occurrence of
such act. Petitioner simply stated that "the head-banging incident happened but
[she] did not perpetrate it." In effect, petitioner admits the occurrence of the headbanging incident but denies committing it. The alleged intervening events before
Ronald died, namely: (a) the consultation with a quack doctor, and (b) the threeday confinement in the East Avenue Medical Center, are not sufficient to break
the relation of the felony committed and the resulting injury. Were it not for the
head-banging incident, Ronald might not have needed medical assistance in the
first place.
5. CRIMINAL LAW; REPUBLIC ACT 7610; CHILD ABUSE AS DEFINED, NOT
AMBIGUOUS; RATIONALE. Contrary to petitioner's contention, Section 10
(a), Article VI of RA 7610 is clear. This provision reads: (a) Any person who shall
commit any other acts of child abuse, cruelty or exploitation or be responsible for

other conditions prejudicial to the child's development including those covered by


Article 59 of Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period. Ambiguity is a condition of admitting two or more meanings, of
being understood in more than one way, or of referring to two or more things at
the same time. A statute is ambiguous if it is susceptible to more than one
interpretation. In the present case, petitioner fails to show convincingly the
ambiguity in Section 10 (a), Article VI of RA 7610. Section 3 (b), Article VI of RA
7610 defines "child abuse" as the maltreatment whether habitual or not, of the
child which includes physical abuse and cruelty. Petitioner's alleged banging of
the heads of Ronald and Lorendo is clearly an act of cruelty.

DECISION
CARPIO, J :
p

The Case
This petition for certiorari 1 assails the Resolutions dated 15 September 2000 and
19 April 2001 of the Secretary of the Department of Justice ("DOJ Secretary") in
I.C. No. 99-6254. 2 The DOJ Secretary 3 denied Laila G. De Ocampo's
("petitioner") petition for review of the investigating prosecutor's finding of
probable cause against her for homicide 4 in relation to Section 10(a), Article VI
of Republic Act No. 7610 ("RA 7610") 5 and for violation of the same provision of
RA 7610. The DOJ Secretary 6 also denied petitioner's motion for
reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena B.
Dacarra ("Magdalena") executed before the Women's Desk of the CPD Police
Station in Batasan Hills, Quezon City on 10 December 1999. Magdalena stated
that on 4 December 1999, her nine-year-old son Ronald complained of dizziness
upon arriving home at about six in the evening. Ronald then vomited, prompting

Magdalena to ask what happened. Ronald replied that petitioner, who was
Ronald's teacher, banged his head against that of his classmate Lorendo Orayan
("Lorendo"). Magdalena inspected Ronald's head and saw a woundless
contusion. Due to Ronald's continued vomiting, Magdalena brought him to a
quack doctor (arbularyo) on 5 December 1999. The following morning,
Magdalena brought Ronald to the East Avenue Medical Center where he
underwent an x-ray. The attending physician informed Magdalena that Ronald's
head had a fracture. Blood oozed out of Ronald's nose before he died on 9
December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged his
head against Ronald's.
During the inquest proceedings on 14 December 1999, Assistant Quezon City
Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as follows:
Evidence warrants the release of the respondent for further investigation
of the charges against her. The case is not proper for inquest as the
incident complained of happened on December 4, 1999. Further, we find
the evidence insufficient to support the charge for homicide against the
respondent. There is no concrete evidence to show proof that the alleged
banging of the heads of the two minor victims could be the actual and
proximate cause of the death of minor Ronald Dacarra y Baluton.
Besides, the police report submitted by the respondent in this case
states that said victim bears stitches or sutures on the head due to a
vehicular accident. There is no certainty, therefore, that respondent's
alleged wrongdoing contributed or caused the death of said victim. 7

Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna
F. Catris-Chua Cheng ("investigating prosecutor") for preliminary investigation.
She scheduled the first hearing on 6 January 2000.
Respondent Erlinda P. Orayan ("Erlinda"), Lorendo's mother, attended the
hearing of 6 January 2000 and alleged that petitioner offered her P100,000,
which she initially accepted, for her and her son's non-appearance at the
preliminary investigation. Erlinda presented the money to the investigating
prosecutor.

On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident,


and Melanie Lugales, who claimed to be another victim of petitioner's alleged
cruel deeds, filed their sworn statements with the Office of the Quezon City
Prosecutor.
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked
the disposition of the inquest prosecutor finding insufficient evidence to support
the charges against her. Petitioner assailed the omission in Magdalena's sworn
statement about Ronald's head injury due to a vehicular accident in November
1997. Petitioner pointed out the absence of damage or injury on Lorendo as
borne out by his medical certificate. Petitioner contended that the head-banging
incident was not the proximate cause of Ronald's death, but the failed medical
attention or medical negligence. Petitioner also alleged that Jennilyn Quirong and
Melanie Lugales have immature perception. Petitioner further asserted that the
causes of death stated in Ronald's Death Certificate are hearsay and
inadmissible in the preliminary investigation.
cTaDHS

Ronald's Death Certificate shows the immediate cause of his death as "Cardio
Pulmonary Arrest," the underlying cause as "Cerebral Edema," and other
significant conditions contributing to death as "Electrolyte imbalance and
vomiting." The Autopsy Report, obtained by the investigating prosecutor from the
PNP Crime Laboratory in Camp Crame, states the cause of death as "Intracranial
hemorrhage secondary to traumatic injury of the head."
The investigating prosecutor issued a Resolution finding probable cause against
petitioner for the offenses charged. The dispositive portion of the Resolution
reads:
WHEREFORE, in view of the foregoing, it is respectfully recommended
that [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of
R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail
recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A.
7610 provides that:
"For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, par. 2 and 263, par.
1 Act No. 3815, as amended, the Revised Penal Code, for the
crimes of murder, homicide, other intentional mutilation

and serious physical injuries, respectively, shall be reclusion


perpetua when the victim is under twelve (12) years of age."
Bail recommended: No bail recommended Homicide, in relation to Art.
VI, Sec. 10, R.A. 7610; and Twenty Thousand pesos
(P20,000.00) Viol. of Sec. 10(a) of R.A. 7610 8

Consequently, petitioner filed a petition for review with the DOJ.


In her appeal to the DOJ, petitioner contended that the investigating prosecutor
showed bias in favor of complainants Magdalena and Erlinda ("complainants") for
not conducting a clarificatory hearing and unilaterally procuring the autopsy
report. Petitioner argued that the investigating prosecutor erred in concluding that
her alleged act of banging Ronald and Lorendo's heads was the cause of
Ronald's injury and that such was an act of child abuse. Petitioner also alleged
that it is the Office of the Ombudsman which has jurisdiction over the case, and
not the Quezon City Prosecutor's Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for review. The DOJ Secretary held that
there was no bias in complainants' favor when the investigating prosecutor did
not conduct a clarificatory hearing and unilaterally procured the autopsy report as
nothing precluded her from doing so.
The DOJ Secretary upheld the investigating prosecutor's finding that Ronald's
injury was the direct and natural result of petitioner's act of banging Ronald and
Lorendo's heads. The DOJ Secretary stated that petitioner never denied such
act, making her responsible for all its consequences even if the immediate cause
of Ronald's death was allegedly the failed medical attention or medical
negligence. The DOJ Secretary held that assuming there was failure of medical
attention or medical negligence, these inefficient intervening causes did not break
the relation of the felony committed and the resulting injury.
The DOJ Secretary rejected petitioner's claim that she is innocent as held by the
inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely
recommended petitioner's release for further investigation since the case was not
proper for inquest and the evidence was then insufficient.

The DOJ Secretary further stated that the omission in Magdalena's sworn
statement about Ronald's head injury due to a vehicular accident in November
1997 and the absence of any injury on Lorendo are inconsequential.
Moreover, the DOJ Secretary ruled that whether the statements of the causes of
death in the death certificate and autopsy report are hearsay, and whether
Jennilyn Quirong and Melanie Lugales have immature perception, are evidentiary
matters which should be determined during trial. The DOJ Secretary also
sustained the investigating prosecutor's conclusion that the banging of Ronald
and Lorendo's heads is an act of child abuse.
Petitioner filed a motion for reconsideration 9 which the DOJ Secretary denied in
his Resolution dated 19 April 2001. 10
Hence, this petition.
The Issues
Petitioner raises the following issues:
1. Whether petitioner was denied due process during the
preliminary investigation; and
2. Whether there is probable cause against petitioner for homicide
under Article 249 of the Revised Penal Code in relation to
Section 10(a), Article VI of RA 7610 and for violation of
Section 10(a), Article VI of RA 7610.
The Ruling of the Court
The petition lacks merit.
Before resolving the substantive issues in this case, the Court will address the
procedural issue raised by the Office of the Solicitor General ("OSG"). 11 The
OSG contends that instead of Rule 65, Rule 43 is applicable to the present case.
Thus, the OSG argues that the petition should be dismissed outright for being
filed with this Court, instead of with the Court of Appeals, under a wrong mode of
appeal. On the other hand, assuming Rule 65 applies, the OSG points out that
the petition for certiorarishould be filed with the Court of Appeals.

Based on Memorandum Circular No. 58, 12 the resolution of the DOJ Secretary is
appealable administratively to the Office of the President since the offenses
charged in this case are punishable by reclusion perpetua. 13 From the Office of
the President, the aggrieved party may file an appeal with the Court of Appeals
pursuant to Rule 43. 14
Even assuming that the DOJ Secretary committed grave abuse of discretion in
rendering the assailed Resolutions amounting to lack or excess of jurisdiction,
petitioner should have filed the instant petition for certiorari with the Court of
Appeals. Hence, on the issue alone of the propriety of the remedy sought by
petitioner, this petition for certiorari must fail. However, considering the gravity of
the offenses charged and the need to expedite the disposition of this case, the
Court will relax the rules and finally resolve this case in the interest of substantial
justice.
aTHASC

Whether petitioner was denied


due process during the preliminary investigation
Absence of a clarificatory hearing
The Court rejects petitioner's contention that she was denied due process when
the investigating prosecutor did not conduct a clarificatory hearing. A clarificatory
hearing is not indispensable during preliminary investigation. Rather than being
mandatory, a clarificatory hearing is optional on the part of the investigating
officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112.
This provision states:
(e) If the investigating officer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but without
the right to examine or cross-examine. . . . 15 (emphasis supplied)

The use of the word "may" in a statute commonly denotes that it is directory in
nature. The term "may" is generally permissive only and operates to confer
discretion. 16 Under Section 3(e) of Rule 112, it is within the discretion of the

investigation officer whether to set the case for further hearings to clarify some
matters.
In this case, the investigating prosecutor no longer conducted hearings after
petitioner submitted her counter-affidavit. This simply means that at that point the
investigating prosecutor believed that there were no more matters for clarification.
It is only in petitioner's mind that some "crucial points" still exist and need
clarification. In any event, petitioner can raise these "important" matters during
the trial proper.
Petitioner was not deprived of due process since both parties were accorded
equal rights in arguing their case and presenting their respective evidence during
the preliminary investigation. Due process is merely an opportunity to be
heard. 17 Petitioner cannot successfully invoke denial of due process since she
was given the opportunity of a hearing. 18 She even submitted her counteraffidavit to the investigating prosecutor on 18 January 2000.
Preliminary investigation is merely inquisitorial. It is not a trial of the case on the
merits. 19 Its sole purpose is to determine whether a crime has been committed
and whether the respondent is probably guilty of the crime. 20 It is not the
occasion for the full and exhaustive display of the parties' evidence. 21 Hence, if
the investigating prosecutor is already satisfied that he can reasonably determine
the existence of probable cause based on the parties' evidence thus presented,
he may terminate the proceedings and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the right to examine evidence submitted by
complainants when the investigating prosecutor unilaterally obtained a copy of
the autopsy report from the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties' evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring the
investigating prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of Ronald's death,
can either absolve or condemn the petitioner. Unfortunately for petitioner, the

investigating prosecutor found that the autopsy report bolstered complainants'


allegations.
Moreover, there is nothing to support petitioner's claim that the investigating
prosecutor was biased in favor of complainants. There are other pieces of
evidence aside from the autopsy report upon which the investigating prosecutor
based her finding of probable cause. The autopsy report is not the sole piece of
evidence against petitioner. The sworn statement of the other victim, Lorendo,
and the eyewitness account of Jennilyn Quirong, substantiate the charges
against petitioner. Petitioner's failure to deny the occurrence of the head-banging
incident also strengthened complainants' allegations.
Petitioner mistakenly cites Section 3(d) of Rule 112 22 in arguing that the
investigating prosecutor should not go beyond the evidence presented by
complainants in resolving the case. This provision applies if the respondent
cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit
within the prescribed period. Such is not the case here where petitioner filed her
counter-affidavit and both parties presented their respective evidence.
Whether there is probable cause
for the offenses charged against petitioner
Existence of probable cause
Petitioner challenges the finding of probable cause against her for the offenses
charged arguing that the head-banging incident was not the proximate cause of
Ronald's death. Petitioner insists that efficient intervening events caused
Ronald's death.
We do not agree. There is probable cause for the offenses charged against
petitioner. Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind that a crime has been committed
and the respondent is probably guilty of the crime. 23
In the present case, Ronald, a nine-year-old student, died five days after his
teacher, petitioner in this case, allegedly banged his head against that of his
classmate Lorendo. There is nothing in the records showing petitioner's specific
denial of the occurrence of such act. Petitioner simply stated that "the head-

banging incident happened but [she] did not perpetrate it." 24 In effect, petitioner
admits the occurrence of the head-banging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the consultation
with a quack doctor, and (b) the three-day confinement in the East Avenue
Medical Center, are not sufficient to break the relation of the felony committed
and the resulting injury. Were it not for the head-banging incident, Ronald might
not have needed medical assistance in the first place.
These circumstances which allegedly intervened causing Ronald's death are
evidentiary matters which should be threshed out during the trial. The following
are also matters better left for the trial court to appreciate: (a) the contents of the
death certificate and autopsy report, (b) the medical records of Ronald's accident
in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie
Lugales, and (d) the alleged lack of medical assistance or medical negligence
which caused Ronald's death.
To repeat, what is determined during preliminary investigation is only probable
cause, not proof beyond reasonable doubt. 25 As implied by the words
themselves, "probable cause" is concerned with probability, not absolute or moral
certainty. 26
Asserting her innocence, petitioner continues to invoke the disposition of the
inquest prosecutor finding insufficient evidence for the charges against her. As
correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the
case but merely recommended it for further investigation since it was not proper
for inquest and the evidence was then insufficient. Moreover, petitioner's active
participation in the preliminary investigation without questioning the propriety of
such proceedings indicates petitioner's agreement with the recommendation of
the inquest prosecutor for the further investigation of the case.
SaIEcA

Charges of Homicide and Child Abuse


Petitioner's single act of allegedly banging the heads of her students had two
distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face
prosecution for cruelty to each victim. For Ronald's death, petitioner is being
charged with homicide under Article 249 of the Revised Penal Code 27 in relation
to Section 10(a), Article VI of RA 7610 punishable by reclusion

perpetua. 28 However, this does not mean that petitioner is being charged with
the distinct offenses of homicide and child abuse for Ronald's death. On the other
hand, for her cruelty to Lorendo, petitioner is being charged with violation of
Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum
period.
Contrary to petitioner's contention, Section 10(a), Article VI of RA 7610 is clear.
This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the
child's development including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the Revised Penal
Code, as amended, shall suffer the penalty ofprision mayor in its
minimum period.

Ambiguity is a condition of admitting two or more meanings, of being


understood in more than one way, or of referring to two or more things at the
same time. A statute is ambiguous if it is susceptible to more than one
interpretation. 29 In the present case, petitioner fails to show convincingly the
ambiguity in Section 10(a), Article VI of RA 7610.
Section 3(b), Article VI of RA 7610 defines "child abuse" as the maltreatment,
whether habitual or not, of the child which includes physical abuse and cruelty.
Petitioner's alleged banging of the heads of Ronald and Lorendo is clearly an act
of cruelty.
In a petition for certiorari like this case, the primordial issue is whether the DOJ
Secretary acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse
of discretion in finding that there is probable cause to charge petitioner of the
crimes of homicide and child abuse. The Court further rules that the investigating
prosecutor did not act with grave abuse of discretion in securing motu proprio the
autopsy report and in not calling for a clarificatory hearing. This ruling does not
diminish in any way the constitutional right of petitioner to be presumed innocent
until the contrary is proven.

WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the


Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 996254. No pronouncement as to costs.
SO ORDERED.
|||

(De Ocampo v. Secretary of Justice, G.R. No. 147932, [January 25, 2006], 515

PHIL 702-716)

18
[G.R. No. 217508. April 18, 2016.]
JOSEPH SCOTT PEMBERTON, petitioner, vs. HON. LEILA M.
DE LIMA, in her capacity as the Secretary of Justice, JUDGE
ROLINE GINEZ-JABALDE, in her capacity as Presiding Judge
of Branch 74 of the Regional Trial Court of Olongapo City, and
MARILOU LAUDE y SERDONCILLO, respondents.
DECISION
LEONEN, J :
p

This resolves a Petition for Certiorari 1 praying that the Resolutions


dated January 27, 2015 2 and February 20, 2015 3 of respondent Secretary of
Justice Leila M. De Lima (Secretary De Lima) in I.S. No. III-10-INV-14J01102 4 be reversed and set aside. 5
A complaint for murder was filed by the Philippine National PoliceOlongapo City Police Office and private respondent Marilou Laude y
Serdoncillo (Laude) against petitioner Joseph Scott Pemberton (Pemberton). 6
On October 17, 2014, Pemberton received a Subpoena 7 issued by the
City Prosecutor of Olongapo City giving him 10 days from receipt within which
to file a counter-affidavit. 8 Laude filed an Omnibus Motion 9 dated October 21,

2014 praying that the City Prosecutor of Olongapo City issue subpoenas
addressed to: (a) "Pemberton, directing him to present himself for the lifting of
his fingerprint and of buccal swabs during the clarificatory hearing set on
[November 5,] 2014;" 10 and (b) the Philippine National Police Crime
Laboratory, directing the Chief of Office to assign forensic personnel to gather
fingerprints and buccal swabs from Pemberton and subject him to "forensic
examination and analysis, including DNA testing." 11 Pemberton opposed this
in his Opposition to the Omnibus Motion dated 21 October 2014 12 dated
October 27, 2014. 13 He also filed a Manifestation and Omnibus Motion: (1)
For Clarification; (2) To Declare Absence of Probable Cause for Murder or Any
Other Crime Against [Petitioner]; and (3) By Way of Ad Cautela [sic] Prayer, in
the Event that this Honorable Office does not Declare the Absence of
Probable Cause, at the very least, To Reduce the Charge to Homicide
Considering the Lack of Circumstances Qualifying the Offense to
Murder 14 dated October 27, 2014. 15
During the preliminary investigation on October 27, 2014, the City
Prosecutor of Olongapo City stated that Pemberton's right to file a counteraffidavit was deemed waived. 16 In the Order dated October 29, 2014, the City
Prosecutor directed the Philippine National Police Crime Laboratory to obtain
latent fingerprint and buccal swabs from Pemberton and "to submit . . . the
results of the forensic examination within a period of three (3) weeks . . . from
the date of actual collection of the specimen[s.]" 17
Pemberton filed a Manifestation with Omnibus Motion: 1) to Determine
Probable Cause on the Basis of Evidence Submitted as of 27 October 2014;
and 2) For Reconsideration of the Order dated 29 October 2014 18 dated
November 4, 2014. 19
However, the City Prosecutor of Olongapo City continued to evaluate
the evidence and conducted ocular inspections in connection with the
preliminary investigation. 20 Through the Resolution dated December 15,
2014, it "found probable cause against [Pemberton] for the crime of
murder." 21 On the same day, an Information 22 for murder was filed against
Pemberton before the Regional Trial Court of Olongapo City. 23 The case was

docketed as Criminal Case No. 865-2014 and was raffled to Branch 74 of the
Regional Trial Court. 24 The trial court issued a warrant of arrest. 25
On December 18, 2014, Pemberton filed his Petition for Review before
the Department of Justice. 26 On the same day, he filed a Motion to Defer the
Proceedings 27 before the Regional Trial Court. 28
In the Resolution dated January 27, 2015, Secretary De Lima denied
Pemberton's Petition for Review 29 and stated that based on the evidence on
record, there was "no reason to alter, modify, or reverse the resolution of the
City Prosecutor of Olongapo City." 30 Pemberton's Motion for Reconsideration
was likewise denied for lack of merit in the Resolution dated February 20,
2015. 31
Aggrieved, Pemberton filed this Petition for Certiorari with application for
the ex-parte issuance of a temporary restraining order and/or writ of
preliminary injunction. 32
CAIHTE

Pemberton argues that in sustaining a finding of probable cause,


Secretary De Lima committed grave abuse of discretion amounting to excess
or absence of jurisdiction based on the following grounds: (a) Secretary De
Lima took into account additional evidence which the City Prosecutor allegedly
had no authority to receive and which Pemberton had no opportunity to
address and rebut, thereby denying him due process of law; 33 (b) Secretary
De Lima found probable cause to charge Pemberton with the crime of murder
when "the evidence on record does not support the existence of probable
cause to indict [him] . . . with either homicide or murder[;]" 34 and (c) Secretary
De Lima found that "the killing was attended with the qualifying circumstances
of treachery, abuse of superior strength[,] and cruelty despite prevailing
jurisprudence dictating that the elements of these qualifying circumstances . . .
be established by direct evidence." 35
Secretary De Lima, through the Office of the Solicitor General, points
out that this Petition is procedurally infirm. The Petition assails the
appreciation of evidence and law by Secretary De Lima, which are "errors of
judgment . . . [that] cannot be remedied by a writ of certiorari." 36 Further, by
filing this Petition before this court and not the Court of Appeals, Pemberton
violated the principle of hierarchy of courts. 37 Moreover, the case is moot and

academic, considering that the Regional Trial Court has convicted Pemberton
for the crime charged. 38
Thus, for resolution are the following issues:
First, whether respondent Secretary Leila M. De Lima committed grave
abuse of discretion in sustaining the finding of probable cause against
petitioner Joseph Scott Pemberton, thereby denying petitioner due process of
law;
Second, whether petitioner violated the principle of hierarchy of courts
by filing his Petition before this Court instead of the Court of Appeals; and
Lastly, whether this case has been rendered moot and academic.
We deny the Petition for Certiorari for lack of merit and for being moot
and academic.
I
In Alafriz v. Nable, 39 this Court defined grave abuse of discretion:
Certiorari lies where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion. "Without jurisdiction"
means that the court acted with absolute want of jurisdiction. There is
"excess of jurisdiction" where the court has jurisdiction but has
transcended the same or acted without any statutory authority. "Grave
abuse of discretion" implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words,
where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of
law. 40 (Citations omitted)

In Ching v. Secretary of Justice, 41 this Court expounded on the


evidence required for a determination of probable cause:
Probable cause need not be based on clear and convincing evidence
of guilt, as the investigating officer acts upon probable cause of
reasonable belief. Probable cause implies probability of guilt and
requires more than bare suspicion but less than evidence which would

justify a conviction. A finding of probable cause needs only to rest on


evidence showing that more likely than not, a crime has been
committed by the suspect. 42

This was reiterated in Chan v. Secretary of Justice: 43


Probable cause has been defined as the existence of such facts
and circumstances as would lead a person of ordinary caution and
prudence to entertain an honest and strong suspicion that the person
charged is guilty of the crime subject of the investigation. Being based
merely on opinion and reasonable belief, it does not import absolute
certainty. Probable cause need not be based on clear and convincing
evidence of guilt, as the investigating officer acts upon reasonable
belief. Probable cause implies probability of guilt and requires more
than bare suspicion but less than evidence which would justify a
conviction. 44

There is no basis to doubt that respondent De Lima judiciously


scrutinized the evidence on record. Based on respondent De Lima's
assessment, there was ample evidence submitted to establish probable cause
that petitioner murdered the victim:
First, the killing of Laude has been indubitably confirmed.
Second, the various pieces of evidence so far presented in this
case, i.e., the CCTV footage of Ambyanz showing Gelviro, Laude and
respondent leaving the club together; the unequivocal testimonies of
Gelviro and Gallamos positively identifying respondent as the person
who was last seen with Laude on the night he died; the result of the
general physical examination conducted on respondent showing
abrasions and light scratches on different parts of his body; his latent
print on one of the condoms found at the crime scene; and the
unequivocal testimonies of respondent's fellow Marine servicemen who
were with him on that fateful night, lead to no other conclusion than that
respondent was the perpetrator of the crime.
Third, the results of the physical examination conducted on
respondent and Laude's cadaver, as well as the ocular inspection of
the crime scene, demonstrate the attendant qualifying circumstances
of treachery, abuse of superior strength, and cruelty.

Finally, the killing is neither parricide nor infanticide as provided


under the RPC, as amended. Hence, the charge of murder.
DETACa

The convergence of the foregoing circumstances all taken


together leads to the fair and reasonable inference that respondent is
probably guilty of killing Laude through treachery, abuse of superior
strength, and cruelty.
Maintaining his innocence, respondent points out the lack of any
direct evidence linking him to the crime. We are not persuaded.
Absence of direct evidence does not preclude a finding of
probable cause. It has been the consistent pronouncement of the
Supreme Court that, in such cases, the prosecution may resort to
circumstantial evidence. Crimes are usually committed in secret and
under conditions where concealment is highly probable. If direct
evidence is insisted upon under all circumstances, the guilt of vicious
felons who committed heinous crimes in secret or in secluded places
will be hard, if not impossible, to prove.
In view of the importance of the qualifying circumstances as the
bases for respondent's indictment for the crime of murder, the same
are heretofore discussed and explained.
There is treachery when these two elements occur: (1) the
employment of means of execution that give the persons attacked no
opportunity to defend themselves or retaliate; and (2) the means of
execution were deliberately or consciously adopted.
Treachery clearly attended the killing of Laude. The evidence
reveals that respondent choked him from behind. The autopsy results
as well as the examination conducted by the NCIS indicate that there
were visible pressure marks and a circular purplish discoloration
around his neck. In addition, the Medico Legal Report No. A14163RCLO5 shows that the external portion of the right horn of his
larynx is contused and that there is hematoma on the upper inner
portions of the larynx below the glottis. It is apparent that the manner of
attack employed by respondent rendered Laude unable to defend
himself or to retaliate.
It has been repeatedly held that the essence of treachery is the
sudden attack by an aggressor without the slightest provocation on the

part of the victim, depriving the latter of any real chance to defend
himself, thereby ensuring the commission of the crime without risk to
the aggressor. We note that the short span of time it took to kill Laude
indicates the suddenness of the attack. According to the separate
testimonies of certain witnesses, the lifeless body of Laude was
discovered thirty (30) minutes after Gelviro left the room.
HEITAD

Moreover, the absence of provocation on the part of Laude to


warrant such vicious attack need not be debated. He went with
respondent on his own volition to engage in sexual acts in exchange for
money. Thus, he most probably did not expect to be in danger and,
consequently, he was unlikely unable to defend himself against the
unwarranted attack.
In appreciating the element of abuse of superior strength, it is
not only necessary to evaluate the physical conditions of the
protagonists or opposing forces and the arms or objects employed by
both sides, but it is also necessary to analyse the incidents and
episodes constituting the total development of the event. We aptly note
that respondent is a member of [the] United States Marine Corps,
which is known to have the strictest recruitment standards among the
Uniformed Services of the United States Armed Forces. In view of the
rigorous physical and mental training requirements for enlistment, all
members of the Marine Corps possess superior strength and
exceptional combat skills. On the other hand, Laude, albeit biologically
a man, is a transgender who chose to adapt (sic) a woman's physical
appearance and behavior. Thus, it is clear that there is manifest
physical disparity between respondent and Laude and that the former
took advantage of his superior strength to cause the death of Laude,
as evidenced by the multiple abrasions and contusions found on the
latter.
On the other hand, there is cruelty when the culprit enjoys and
delights in making his victim suffer slowly and gradually, causing him
unnecessary physical pain in the consummation of the criminal act.
The test is whether respondent deliberately and sadistically augmented
the wrong by causing another wrong not necessary for its commission
or inhumanly increased the victim's suffering or outraged or scoffed at
his person or corpse. The autopsy results that Laude died of "asphyxia

due to drowning and strangulation" shows that while he was still


breathing, respondent drowned him by forcefully submerging his head
in the water inside the toilet bowl. This grisly scenario, coupled with
Laude's other major injuries, clearly show that he suffered excessively
prior to his death. Respondent opted to kill him in a manner that
increased his suffering and caused him unnecessary physical pain
before his death. Drowning Laude in a toilet bowl evidently indicates
respondent's intention to degrade him. 45 (Citations omitted)

Respondent De Lima's finding of probable cause against petitioner was


not rendered with grave abuse of discretion. Rather, her determination was
based on a careful evaluation of evidence presented.
Moreover, petitioner was fully accorded due process in the preliminary
investigation proceedings. This Court has explained that the essence of due
process is an opportunity to be heard:
aDSIHc

The essence of due process is that a party is afforded a


reasonable opportunity to be heard in support of his case; what the law
abhors and prohibits is the absolute absence of the opportunity to be
heard. When the party seeking due process was in fact given several
opportunities to be heard and to air his side, but it was by his own fault
or choice that he squandered these chances, then his cry for due
process must fail. 46 (Citations omitted)

Petitioner had multiple opportunities to controvert the evidence


presented during the preliminary investigation. He was directed to file a
counter-affidavit, which was an opportunity to refute the allegations against
him. Petitioner was also given the opportunity to seek reconsideration of the
initial finding of probable cause.
II
In The Diocese of Bacolod v. Commission on Elections, 47 we explained
the role of this Court in relation to the doctrine of hierarchy of courts:
This brings us to the issue of whether petitioners violated the
doctrine of hierarchy of courts in directly filing their petition before this
court.

Respondents contend that petitioners' failure to file the proper


suit with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition. They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor. While respondents claim that while there are exceptions to the
general rule on hierarchy of courts, none of these are present in this
case.
On the other hand, petitioners cite Fortich v. Corona on this
court's discretionary power to take cognizance of a petition filed directly
to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ." Petitioners submit that there are
"exceptional and compelling reasons to justify a direct resort [with] this
Court."
In Baez, Jr. v. Concepcion, we explained the necessity of the
application of the hierarchy of courts:
The Court must enjoin the observance of the
policy on the hierarchy of courts, and now affirms that the
policy is not to be ignored without serious consequences.
The strictness of the policy is designed to shield the
Court from having to deal with causes that are also well
within the competence of the lower courts, and thus leave
time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned
to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when
absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.
In Baez, we also elaborated on the reasons why lower courts
are allowed to issue writs of certiorari, prohibition, and mandamus,
citing Vergara v. Suelto:
The Supreme Court is a court of last resort, and
must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and
immemorial tradition. It cannot and should not be
burdened with the task of dealing with causes in the first

instance. Its original jurisdiction to issue the so-called


extraordinary writs should be exercised only where
absolutely necessary or where serious and important
reasons exist therefore. Hence, that jurisdiction should
generally be exercised relative to actions or proceedings
before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some
reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is
also within the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts that the
specific action for the writ's procurement must be
presented. This is and should continue to be the policy in
this regard, a policy that courts and lawyers must strictly
observe.
The doctrine that requires respect for the hierarchy of courts
was created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the
evidence presented before them. They are likewise competent to
determine issues of law which may include the validity of an ordinance,
statute, or even an executive issuance in relation to the Constitution. To
effectively perform these functions, they are territorially organized into
regions and then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly perform the allimportant task of inferring the facts from the evidence as these are
physically presented before them. In many instances, the facts occur
within their territorial jurisdiction, which properly present the 'actual
case' that makes ripe a determination of the constitutionality of such
action. The consequences, of course, would be national in scope.
There are, however, some cases where resort to courts at their level
would not be practical considering their decisions could still be
appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court
that reviews the determination of facts and law made by the trial courts.
It is collegiate in nature. This nature ensures more standpoints in the

review of the actions of the trial court. But the Court of Appeals also
has original jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is competent to
determine facts and, ideally, should act on constitutional issues that
may not necessarily be novel unless there are factual questions to
determine.
This court, on the other hand, leads the judiciary by breaking
new ground or further reiterating in the light of new circumstances or
in the light of some confusions of bench or bar existing precedents.
Rather than a court of first instance or as a repetition of the actions of
the Court of Appeals, this court promulgates these doctrinal devices in
order that it truly performs that role. 48

We proceeded to name exceptional cases, where direct resort to this


Court may be allowed:
First, a direct resort to this court is allowed when there are
genuine issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition to assail the constitutionality of
actions of both legislative and executive branches of the government.
In this case, the assailed issuances of respondents prejudice
not only petitioners' right to freedom of expression in the present case,
but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse. To quote an
eminent political theorist:
ETHIDa

[T]he theory of freedom of expression involves more than


a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew
out of an age that was awakened and invigorated by the
idea of new society in which man's mind was free, his
fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a

prescription for attaining a creative, progressive, exciting


and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize
his full potentialities. It spurns the alternative of a society
that is tyrannical, conformist, irrational and stagnant.
In a democracy, the citizen's right to freely participate in the
exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may provide,
as public participation in nation-building is a fundamental principle in
our Constitution. As such, their right to engage in free expression of
ideas must be given immediate protection by this court.
A second exception is when the issues involved are of
transcendental importance. In these cases, the imminence and clarity
of the threat to fundamental constitutional rights outweigh the necessity
for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of
procedural niceties when clearly faced with the need for substantial
protection.
In the case before this court, there is a clear threat to the
paramount right of freedom of speech and freedom of expression
which warrants invocation of relief from this court. The principles laid
down in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right to
suffrage not only includes the right to vote for one's chosen candidate,
but also the right to vocalize that choice to the public in general, in the
hope of influencing their votes. It may be said that in an election year,
the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights,
therefore, allows for the immediate resort to this court.
Third, cases of first impression warrant a direct resort to this
court. In cases of first impression, no jurisprudence yet exists that will
guide the lower courts on this matter. In Government of the United
States v. Purganan, this court took cognizance of the case as a matter
of first impression that may guide the lower courts:

In the interest of justice and to settle once and for


all the important issue of bail in extradition proceedings,
we deem it best to take cognizance of the present case.
Such proceedings constitute a matter of first impression
over which there is, as yet, no local jurisprudence to
guide lower courts.
This court finds that this is indeed a case of first impression
involving as it does the issue of whether the right of suffrage includes
the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus,
direct resort to this court is allowed.
Fourth, the constitutional issues raised are better decided by
this court. In Drilon v. Lim, this court held that:
. . . it will be prudent for such courts, if only out of
a becoming modesty, to defer to the higher judgment of
this Court in the consideration of its validity, which is
better determined after a thorough deliberation by a
collegiate body and with the concurrence of the majority
of those who participated in its discussion.
In this case, it is this court, with its constitutionally enshrined
judicial power, that can rule with finality on whether COMELEC
committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored.
This case was filed during the 2013 election period. Although the
elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations
would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ.
COMELEC is a constitutional body. In Albano v. Arranz, cited by
petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance of each and every province
were [to] arrogate itself the power to disregard, suspend, or contradict
any order of the Commission on Elections: that constitutional body
would be speedily reduced to impotence."

In this case, if petitioners sought to annul the actions of


COMELEC through pursuing remedies with the lower courts, any ruling
on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, this court
affords great respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court would be in the
best interest of respondents, in order that their actions may be guided
accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of law that could
free them from the injurious effects of respondents' acts in violation of
their right to freedom of expression.
cSEDTC

In this case, the repercussions of the assailed issuances on this


basic right constitute an exceptionally compelling reason to justify the
direct resort to this court. The lack of other sufficient remedies in the
course of law alone is sufficient ground to allow direct resort to this
court.
Eighth, the petition includes questions that are "dictated by
public welfare and the advancement of public policy, or demanded by
the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy." In the past, questions similar to these which this
court ruled on immediately despite the doctrine of hierarchy of courts
included citizens' right to bear arms, government contracts involving
modernization of voters' registration lists, and the status and existence
of a public office.
This case also poses a question of similar, if not greater import.
Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must
occur at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this
court directly. 49

A direct invocation of this Court's original jurisdiction to issue these writs


should be allowed only when there are special and important reasons clearly
and specifically set out in the petition. 50
In this case, petitioner alleges that the case against him has been
scheduled for an expedited trial. 51 Thus, petitioner claims that it is necessary
"to expeditiously arrive at a definitive ruling as to whether . . . respondent [De
Lima] committed grave abuse of discretion . . . in issuing the [a]ssailed
[r]esolutions." 52 In his view, a direct invocation of this Court's original
jurisdiction is necessary. Petitioner argues that without this Court's
intervention, a situation may result where "the trial has already concluded[,]
while the issue on whether there exists probable cause to charge [petitioner]
with the crime of murder . . . has not been settled with finality." 53
This argument is completely bereft of merit. It is not clear why any
action by the Court of Appeals, which has concurrent original jurisdiction in
petitions forcertiorari under Rule 65, cannot be considered as sufficient for
review of petitioner's case.
Furthermore, the possibility of the conclusion of the trial of the case
against petitioner is not a reason that is special and important enough to
successfully invoke this Court's original jurisdiction. Once there has been a
judicial finding of probable cause, an executive determination of probable
cause is irrelevant. Consequently, even assuming that grave abuse of
discretion somehow taints an executive finding of probable cause, such grav