REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION QUEZON CITY, BRANCH 224 PEOPLE OF THE PHILIPPINES, = versus - Criminal Case Nos. Q-09-162148 to 72 Q.09-162246 to 31; Q-10-162652 to 66 Q-10-163766 ANDAL AMPATUAN, JR., ET AL. Accused, REPLY (Re: Opposition to Motion to Dismiss) Erroneously Accused DATU AKMAD “TATO" AMPATUAN, SR. ("Datu Akmad’), by counsel, respectfully submits his Reply to the Prosesution’s Opposition 10 Motion to Dismiss dated September 20, 2011 based upan the following: Grounds 1 THE HONORABLE GOURT CAN DISMISS THESE CASES BASED ON ITS CONTROL POWERS AND INDEPENDENT ASSESSMENT OF THE INFORMATIONS AND RECORDS HEREIN. " THE PROSECUTIONS WITNESSES AND EVIDENCE THEMSELVES SHOW THAT DATU AKMAD HAS NOTHING TO DO WITH THE CRIMES SUBJECT MATTER OF THESE CASES. u PRIVATE COMPLAINANTS’ SUPPLEMENTAL MOTION FOR RECONSIDERATION DATED APRIL 30, 2010 IS A PROHIBITED PLEADING IT BEING IN THE NATURE OF A FURTHER MOTION FOR RECONSIDERATION WHICH 15 F “OSCRIBED BY SECTION 13 OF THE 2000 NPS RULE ON APPEAL.wv THE PRELIMINARY INVESTIGATION PROCEEDINGS CONDUCTED AGAINST DATU AKMAD IN CONNECTION WITH T!.ESE CASES IS ANULLITY. v THE BELATED AND DUBIOUS TALUSAN AFFIDAVIT, WHIGH WAS ONLY PRESENTED FOR THE FIRST TIME ON APPEAL AND ONLY AFTER THE ISSUANCE OF THE DOv’S APRIL 16, 2010 RESOLUTION (WHICH EXCLUDED DATU AKMAD FROM THESE CASES), CANNOT BE ADMITTED AGAINST DATU AKMAD PURSUANT TO PARAGRAPH X (E) OF THE 200%°MANUAL FOR PROSECUTORS. vi THE BELATED AND DUBIOUS TALUSAN AFFIDAVIT CANNOT BE USED AS BASIS FOR INDICTING DATU AKMAD WITHOUT SERIOUS VIOLATIONS OF HIS RIGHTS TO DUE PROCESS. vit DATU AKMAD PRESENTEO “CLEAR AND CONVINCING DOCUMENTED PROOFS THAT IT WAS UNBELIEVABLE AND — PHYSICALLY IMPOSSIBLE FOR HIM TO HAVE ALLEGEDLY PARTICIPATED IN THE SUPPOSED PLANNING AND SUBSEQUENT KILLING OF THE MEMBERS OF THE MANGUDADATU CONVOY. Discussion (i) The Honorable Court can dismiss these cases based on its control powers and independent assessment of the Informations and records het 1. In ils Opposition to Motion to Dismiss dated September 20, 2011, the Prosecution asserts that "the Court of Appeals has already ruled on the issue of grave ebuse of discretion allegedly committed by the Secretary of Justice in finding probable cause against herain accused based on the Affidavit of Talusan” {at p. 2). Hence, the prosecution prays for the denial of Datu Akmad’s present Motion to Dismiss.2. of probable cause for purposes of filing the ‘presant Informations against Datu Akmad, does not foreclose the Honorable Court ‘rom dismissing these baseless and sweeping cases based on the Honorable Court's control and preliminary The Prosecution is seriously mistaken. The DO\'s aforesaid finding examination powers. 3. ‘As held by the Supreme Gourt in Gruz et al., vs. Judge Areola, et al, A.M, No. RTJ-01-1642, March 8, 2002: 4 Court, the Honarable Court can dismiss haressment and baseless suits based on ‘ts control powers. This is consistent with the ruling of the Supreme Court in . Judges and Prosdtutérs 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 rolessod. . . Tas determination of probable cause for the warrant of arrest is made by the judge. ‘The preliminary investigation proper — whethar 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 10 the expense, rigors and embarressrent of trial — is the function of the Prosecutor. xX XxX. Xxx We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of @ sufficient ground for the filing of the information or it is an investigation for the determination of 2 probable cause for the issuence of e warrant of arrest, The first kind of preliminary investigation is executive in nature. It is part of the prosecution's jot «Tx socond kind of proliminary investigation which is more property caliod preliminary examination is judicial in nature ard is lodged with the judge. (Emphasis supplied) tn addition to the preliminary examination powers of the Honcrable Crespo vs. Mogul (151 SCRA 462, at p. 471}, whelé it explicitly held 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 3fiscal retains the direction and contral of the prosecution of oriminel cases even while the case is aleacy 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.” (Emphasis supplied) 5, This finds more significance especially so that the Honorable Court, not being a surrogate of the DOV, is duty bound to resolve all incidents in these cases based on its own independent assessment and careful examination of the records herein. As held by the Supreme Court in Ligaya vs. Orda, OR No. 158236, September 1, 2004: “The trial court must make an independent evaluation or assessment of the merits of the case and the evidence on record of the prosecution.” (Emphasis sunplic:!) 6. “Hence, if upon the filing of the information in court the trial judge, after reviewing the information and the documents attached thereto, finds that no probabie cause exists must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason fo hold the accused for trial and further expose him to an open and public accusation of the cfime when no probable cause exists’ (Emohasis supplied) (Allado vs. Dickno, et al, G.R, No. 113630, May 5, 1904) es 7, “It is the duty of the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once il is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to tho guilt of the accused” (Emphasis supplied} [Salonga vs, Pafio, (134 SCRA 438}]. 8. In view thereof, the dismissal of tiiese vexatious cases against Datu Akmad is warranted,{ii) The prosecution's witnesses and evidence themselves show that Datu Akad has nothing to do with the crimes subject Matter of these cases. 9, It should be noted that prosecution witness, SPO1 Cixon Jayectin Kasan (SP01 Kasan"}, the then Acting Chief of Police of the Buluan, Maguindanao when the massacre happened, testified on August 3, 2011 before the Honorable Cour, that Kenny Dalandag ("Dalandag”) purportedly reported to SP01 Kasan around 2 o'clock in the morning of November 24, 2009 about what everything Dalandag allegedly knew about the killing of the members of tho Mangudadatu convoy and the personalities allegedly involved thereat. 410. Based thereon, SPO1 Kasan supposedly entered in the Butuan Municisatity Police Station Blotter (the “Buluan Blotter") under Entry No. 1243 everything which Dalandag allegedly reported to SPO1 Kasan about the subject kiling and Datandag’s supposed participation in the massacre on the purported basi with him and identified in open court, the aforesaid Bulan Blotter (which clearly of the Doctrine of Res Gestae. In fact, SPO1 Kasan also brought along names the personalities allegedly involved in the purported planning and the manner by which the massacre was allegedly carried out). 44. Gonspicuously, the aforesaid Buluan Blotter (Annex 18, Datu Akmad's Motion to Dismiss) which the procccution prosented in court, does not mention, even remotely, that Datu Akmad ever participated in any supposed meetings to flag and Kill the members of the Mangudadatu convey. Neither does the Buluan Blotter mention that Datu Akmad participated in the supposed flagging and subsequent killing of the members of the Mangudadatu convoy on November 23, 2009. 12, Evidently, the supposed Salaysays of the prosecution’s main perjured witness, Kenny B. Dalandag, aizd vie purported Police Blotter containing everything Dalandag supposedly told SP0% Kasan in connection with the massacre around past midnight of November 23, 2009 (which SPO1 Gixon Kasan identified in court), do not mention the name of Datu Akmad as having attended any meeting, flagging or killing of the victims. Neither did the Safaysays of Kenny B, Dalandag or the subject Police Blotter of Kasan specify any overt act to describe Datu Akmad’s supposed involvement before oreven after the carnage. Hence, they could not be used in any manner to implead Datu Akmad in these cases 13. Same thing with the very-well rehearsed witness, Lakmodin Saliao ('Saliao") whe has an ax te grind against the primary suspects in these eases. In fact, when Salizo testified before the Honorable Court, Saliao made faces, over re-acted and whimsically pointed to just anybody as having allegedly participated In the supposed meetings (o purportedly kill the members of the Mangudadatu convoy. 14, Even when Saliao was only asked to identify and point at the ‘Accused in these cases, Saliao, like a canon on the loose, pointed even innocent lawyers and by-standers whose only purpose in attending the hearing before the Honorable Court was to assist their cients. Unt-tievably, Saliao committed to memory and practically without oreathing or blinking any eye, recited about thirty (0} names in a row and in a very fast manner, all the names of people whom his hanclors wanted impleaded in these cases. Hence, Saliao and his testimony, just like Dalandag end the latter's Salaysays should be debunked for being products of polluted sources and whose motives to testify in these cases are highly suspect in cnaracter. 45. That Datu Akmad did not participite% the flagging and subsequent killing of the members of the Mangudadatu convoy is likewise buttressed hy the Salaysay of another prosecution witness, Police inspector Rex Arie! T2bao Diongon, ("Police Inspector Diongon’) dated January 12, 2010 (Annex 16, Datu Akmad’s Motion te Dismiss). This Salaysay which prosecution witness Police Inspector Diongon executed and subscribed before no less than State Prosecutor Juan C. Navera of the Department of Justice of the Republic of the Philippines and which Diongon identified during his testimony before tho Honorable Court specifically provides, as“cllaws “92. Na sa kallwanagan ng lahat, gusto ko din pong ipaalam sa kinauukulan na si DATU ANDAL AMPATUAN, SR. ZALDY AMPATUAN, ANWAR AMPATUAN, SAJID AMPATUAN, at AKMAD AMPATUAN ay di ko nakikita sa araw ng nangyari ang karumaldumal na pangyayari noong araw ng Nobyembro 23, 2009 xxx.” {Emphasis st pp!'24)16. In Pilapil v. Sandiganbayan (221 SCRA 349 [1993], the Supreme Court set a standard for determining the existence of probable cause in the following wise: “While it appears in that“ceXe that we have granied the prosecutcr and the tral judge seemingly unlimited latitude in determining the existence ot absence of probable cause by affirming the long- standing procedure that they can base their findings merely on their personal opinion and reasonable belief, yet, this permissiveness should not be interpreted as giving them arbitrary powers and letting them loose in the determination of the existence of provable cause, a delicate legal question which can result in the harassment and deprivation of liberty of the person sought to be charged or arrested. .. . Good faith is not enough. If subjective good faith alone were the test, the coretitutional protection would be damoanod and the people would be "secure in their persons, houses, papers and effects" enly in the fallible ciscretion of the Judge. On the contrary, the probable cause test is an objective one, for in order that there be probable cause the facis and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that the accused is guilty of the crime whioh has just been committed.” (Emphasis supplied) 17. In-view thereof, and on the basis of the Res fase Loquitor Doctrine and “admission against interest rule" on the part of the prosecution, Datu Akmad’s indictment for multiple murder in these cases must be set aside by the Honorable Court for being baseless in character. (ii) Private Complainants’ Supplemental Motion For Reconsideration dated April 30, 2010 is a prohibited pleading it being in the nature of a further Motion for Reconsideration which is proscribed by Soction 13 of tho 2000 NPS Rule on Appeal. 48, It should be emphasized that on April 16, 2010 (Annex 17, Motion to Dismiss), the Secrelary of Justice granted, inter alla, Datu Akmad’s appeel, and ordered the prosecution to drop Datu Akmad from these Informations by explaining that: (1} Datu Akmac?s evidence shows that he was not or 7near the crime scene on November 23, 2009; (2) Datu Akmad's presence was never mentioned by witness Dalandag during the meeting on November 22, 2009; and (3) Datu Akmad was aot named as respondent in the complaints ftled by the NBI and the PNP-CIDG. The Secretary of Justice then emphatically disposed in nis April 16, 2010 Resolution that: “WHEREFORE, the 20x Acting Provincial Prosecutors of Maguindanao are directed to immediately file amended informations in Criminal Case Nos. Q-09-152148 to Q-09-162172, Q- 09-182216 to 0-09-162231 and Q-10- 162652 to Q-10-182666, all for murder, to the exclusion of respondents .. Datu Akmad “Tato” Ampatuan, Sr., and to report the action isken thereon within five (8} days from receipt hereof. $0 ORDERED (at pp. 7 to 8).” (Emphasis supplied) 19. In its questioned Resclution dated May 5, 2010 (Annex 18, Motion to Dismiss), however, the Secretary of Juctic= reversed himeelf and gave premium to the very much belated Affidavit of Abdul Talusan (‘Tatusan") dated April 22, 2010 {Annex 19, Motion to Dismiss}. The Talusan Affidavit was tardily aitached by the Private Complainants to their prohibited April 30, 2010 “further” Motion for Recansideration on appeal before the Secretary of Justice (Annex 20, Motion to Dismiss), which the Secretary of Justice unfairly used in indicting Datu Akmad in connection with these cases. 20, Itis wol-settled that what detarnsites ‘the nature ct a pleading is not its title or designation but its allegations. Undoubtedly, Private Complainants’ pleading dated April 30, 2010, while cenominated "Supplemental Motion for Reconsideration”, is in actuality, a further motion for reconsideration that is proscribed by Section 13 of the 2000 NPS Rule on Appeal. This is because Private Complainants’ further Motion for Reconsideration dated April 20, 2010 raised new arguments, naw issues and even attached new evidence not otherwise submitted or considered in the preliminary invastigation stage or in Private Complainants’ first Motion for RecensiGéralion on appeal. Hence, Private Complainants’ further Motion for Reconsideration dated April 30, 2040 should not be considered for being @ prohibited pleading under Section 13 of DepartmentOrder No, 70 other known as the 2000 NPS Rule on Appeal which specifically mandates that: “SECTION 13. Motion for reconsideration. - The aggrieved pariy may file a motion for Teconsideration within a non-extendible period of ten (40) days from receipt of the resolution on appeal, furnishing the acverse party and the Proseoution Olfice concerned with copies therecf and submitted proof of such service. No second or furthor motion for reconsideration shall be entertained.” (Emphasis supplied) 21. In Balindog vs. Court of Appeats, G.R. No. 159962, December 15, 2004, the Supreme Court ruled that the above provision is @ mandatory provision. And although the Supreme Court has granted on several ocoasions second motions for reconsideration, the same was premised on the ground that it ig the final arbiter, no such limitation exists for the Secretary of Justice. Resolutions or decisions rendered by the said office can still be appealed to the Office of the President for offenses punishable by reclusion pemetua to death {fbid), The ruling of the High Court in the Balindong Case wes reiterated in Lao, etal.. vs. Co, et al, GR. No. 168198, August 22. 2008, In sum, the DOJ Seoretary cannot suspend the DOJ rules of procedure which prohibits a further motion for reconsideration 22, In these cases, the DOJ did not furnish Datu Akmad with the belatedly filed Talusen Affidevit and did not reouire Datu Akmad to file his Oppositions to Private Complainants’ Motion for Reconsideration and prohibited second or further Supplemental Motion for Reconsideration against the DOJ's April 16, 2010. Hence, serious violations of the rights of Datu Akma to a regular and complete preliminary investigation of cases which were whimsically and baselessly filed against him occurred 23. Undoubtedly, the entire process of Preliminary Investigation, from {he filing of the Complaints before the Prosect.to1 . Office, up te the elevation of the case by way of a Petitions for Review before the Secretary of Justice and the submission of the necessary Counter-Affidavits and Oppositions to certain Motions by the concerned parties thereat must be completed. More importantly, such exercise must be regularly and faithfully done in the manner and in accordance with the procedures laid down by Rule 142 of the Rules ofCriminal Procedure in relation to the 2000 NPS Rule on Agpeal and other related faws and jurisprudence on the matter. 24, Clearly, an incomplete and irregularly conducted investigation is no preliminary investigation at all. This sham exercise is not only invalid but Would also result in serious denial of substantive due process and grievous Violations of ether constitutional rights of the concemed parties, as what happened to Datu Akmad, Hence, such jicomplete, irregular and illegally conducted preliminary investigation must be nullified by the Honorable Court. As held by the Supreme Court in Duterte et al. vs Sandiganbayan, GR. No 130191, April 27, 1998: "We have judiciously studied the case records and we find that the preliminary investigation of the charges against potitionors has boon conducted not in the manner laid down in Administrative Order No. 07. a 200% 20x mK In a number of cases, this Court has not hesitated to grant the sc-called ‘radical relie™ and to spate the accused from undergoing the rigors and expense of a full-blown trial where it is clear that he has been deprived of due process of law or other constitutionally guaranteed rights.” (Emphasis supplied} 25. That Private Complainants’ further Motion for Reconsideration dated April 30, 2010 is a prohibited pleading cannot be denied. In fact, this issue was already clarified by the DO4J in its Resolution dated October 27, 2008 in the case entitled “Sylvia K. Husorio vs. Ramon K. llusorio, Erlinda K. Husorio, et al., 1S. No. 02F-2226,” where the DOJ explicitly held, as follows’ “After careful review of the records, it appears thal the instant motion is the czcond (2) motion for reconsideration filed in the instant case, Section 12 of Department Circular No. 70, series of 2000, to wit: Section 13. Motion For Reconsideration The aggtieved party may file a mation for reconsideratton within a non-extendibie period of ten (10) days from receipt of the resolution on appeal, xx. No second or further motion for reconsideration shall be entertained. wo 1020x wo0c 2000 in other words, the filing of a motion for reconsideration by either or both parties against the Resolution issued by the Department at the first instance on the AppealPetition for Review shall be sounted as the first motion for reconsideration, and the Dopartment shall :2scive the same accordingly. However, if another motion for reconsideration should be filed after the Department has duly resolved the proceedings on the frst. motion for reconsideration, then the said subsequent motion shall be considered a 2™ motion for reconsideration for purposes of the 2" sentence of Section 13, Department Circular No. 70 s, 2000. rogarcless of who among the contending parties fied the came. The party filing the subsequent motion for reconsideration is deemed fo have filed tt at his own peril hecause he may lose nis right to further elevate the case on appeal due to ti Expiration of the remaining pericd within which to appeal (See City of Cebu v. Mendoza, 62 SCRA 440; Millare v. Pananon, id}, particularly when the same is not recognized as falling within the very narrow and extraordinary exceptions to the general rule stated in Section 13 of Department Circular No, 70's. 2000. Parenthetically, logic dictates that the same general prohibition on the filing of a 2” motion for reconsideration likewise applies to motions for reconsideration filed thereafter. As would, the 2" sentence of Section 13, Department Circular No. 70s. 2000 leaves no room for interpretation — No second or further motion for reconsideration shali be enfertained — without distinction as to whether the said motions are filed by either or both of the contending parties to the case. Thus, once this Department has issued at the first Instance a resolction on the ppeal/vetition for review, the general rule is that only one motion for reconsideration is allowed regardless of whether it was filed by either or both of the contending parties to the case. Section 12 of Depariry nt Ciroular No. 70 s. 2000 is clearly different from the appellate procedures provided in other agencies such as, for example, the National Labor Relations Commission (NLRC) Rules which specifically designated not just tne number of motions but also the parties allowed to file the same, by providing that “xxx only one such motion from the same gary shall be entertained (Last provision, Section 14, Rules of the NLRC, cited in Ramos vs, NLRC, id) signifying that the contending parties are entitled to the only one motion for reconsideration for each. It is perhaps due to tha, confusion and misconception that the parties Harein have continued fo file motion after motion in the instant case, each aone limiting their count to the motions they respectively filed. Wherefore, promises considered, the instant Motion for Reconsideration is hereby DENIED. SO ORDERED.” - 26. Jn view of the foregoing considerations, the further Motion for Reconsideration of the Private Complainants dated April 30, 2010 which, for the first fime on appeal, unfairly and baselessty included Datu Akmad as Accused in these cases, cannot be given any consideration for being a prohibited pleading, (vy) The preliminary Investigation proceedings conducted against Datu Akmad in connestion with these cases is a. nullity. 27. There is no question that Datu akmad's substantive rights to a complete preliminary investigation and to due process of law were seriously violated when Datu Akrriad. (i) was not given any copy of the belatedly filed Talusan Affidavit; (ii) was not given any chance to refute the fabricated affidavit of Talusan; (ii) was not given any opportunity to file any opposition to Private Complainants’ Motion For Reconsideration which sought the reversal of the April 16, 2010 Resolution of the Secretary of Justice; fiv) was not given any opportunity to file any opposition to Private Complainants’ prohibited further Motion for Reconsideration before the irregular Resolution of the Socretary of Justice dated May 5, 2010 which (unfairly included Datu Akmad as Accused in these cases) was hastily and haphazardly issued. 1228. Based thereon, there was an incomplete preliminary investigation proceeding in these cases resulting in {ts nullity and serious violation of Datu Akmad's rights to due process of law. This is consistent with the ruling of the Supreme Court in Eduarce IM. Cojvangco, Jr., vs. Gandiganbayan, et al, G.R. No. 134307, December 21, 1998, where it ineluctably held that “Until the motion for reconsideration is resolved, preliminary investigation is not terminated notwithstanding filing of information in court, In the instant case, no copy of the Resolution of the Office of the. Special Prosecutor which brought about the filing of the Information, was sorved on tho petitioner; zonvequently, whan the Information was filed, the preliminary investigation had not yet been terminated. It follows that the Resolution of the Office of the Special Prosecutor (approved by the Ombudsman) resolving in petitioner's favor the "Motion for Reconsideration” he had filed, now finding no probable cause, was an integral part of the preiminary investigetion, not subject to review by the Sandiganbayan (see Torralba vs. Sandiganbayan, 230 SCRA 33 {1964].” {Emphasis supplied) 28, Just like in the Torraiba Case (supra), Datu Akmad was not furnished with a copy of the Talusan Affidavit and the May 5, 2010 Resolution of the DOJ before the filing of the present Informations against him that could have enabled Datu Akmad to file a Motion fer Reconsideration in respect of the erroneous Resolution dated May 5, 2010. As a result, Datu Akmad was not only effectively denied the opportunity to file a motion for reconsideration of the DOJ’'s May 5, 2010 Resolution but was also deprived of ‘lis right to a full preliminary Investigation preparatory to the filing of the information against him in court. 30. Ta this end, the Supreme Court held in its & Bane Decision in Victor Jose Tan Uy vs. Office of the Ombudsman, et al, G.R. Nos. 156399400, June 27, 2008, that: “In fight of the due process: “equirement, the standards thet at the very least assume great materiality and significance are those enunciated in the leading case of Ang Tibay v. Court of industrial Relations [89 Phil. 635 (1940)]. This case instructively tells us - in defining the basic due process safeguards in administrative proceedings - 13that the decision (by an administrative body) must be rendered on the evidence presenied at the hearing, or at least cortaited in the record and disclosed to the parties affected; only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them; il shoutd not, however, deiract from the tribunal's duty actively to actively see that the iaw is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to tie controversy (Id, p. 642)." Mindful of these considerations, we hold that the petitioner's right to due process has been violated.” (Emphasis supplied) 31. To sel the records straight, Datu Akmad does not question the fact that he was given ample opportunity and due process by the DOW to refute the baseless Complaints and purported evidence against him before the issuance of the DOJ's May 5, 2019 Resolution (Annex 18, Mction to Dismiss). Because of the aforesaid opportunity given to Datu Akmad, he was adie to properly submit countervailing evidence and amplified his defenses which. in fact, resulted in the dismissal of the Gomplaints against Datu Akmad through the Resolution of the DOJ dated April 16, 2040 (Annex 17, Motion to Dismiss). 32. Unfortunately, this is not the case as regards events subsequent to the issuance of the DOU’s Aprit 16, 2010 Resolution (which directed the exclusion of Datu Akmad from the subject Infonations). After the April 16, 2010 Resolution of the DOJ, Private Complainants successively filed Motions for Reconsideration including Atty. Nena Sentos’ prohibited second or further Supplemental Motion for Reconsideration on aopeal with the Socrotary of Justice {Annex 19, Mofion to Dismiss) which belatedly submitted Talusan's dubious Affidavit (Annex 20, Motion to Dismiss). Cuite surpnsingly, the DOJ seriously violated the substantive rights of Datu Akmad to a complete and full preliminary investigation when the DOJ hastily issued its questioned Resolution dated May 5, 2010 (Annex 18, Motion to Dismiss} which impleaded ary and all Ampatuans in the subject crimes 33. These inregular procedures were whimsically done by the DOJ ‘nithout even furnishing Datu Akmad with the belatedly filed Tatusan Affidavit and without even requinng Datu Akmad to file his Oppositions to the subject Motions 14for Reconsideration and prohibited second or further Motion for Reconsideration of Atty. Nena Santos. These unfair anc persecutorial acts of the DOd must act ve legitimized not only because they seriously curtail the basic tenets of Datu Akimad’s substantive rights to due process but more importantly, because such unconstitutional acts ere unprecedented in the annals of the DOJ's Resolution making procese. Hence, the subject Resolution of the DOJ dated May 6, 2010 {Annex 18, Motion to Dismiss) should not be given premium by the Honorable Court for being void ab initio, 24. _ Inholding that preliminary investigation proceedings conductett in violation of due process of law is a nullity, the Supreme Court further neld in its En Bane Decision in Vietor Jose Tan Uy vs. Office cf the Ombudsman, et al, (supra)., that: “Under the above circumstances, tho respondent Ombudsman could only fall back en the simple roeponsa that due process cannot be compartmentalized, the court proceedings participated in by the accused-movant (the petitioner) form part and parcel of such due process in the same manner that the further preliminary investigation is Inseperable from ihe said court proceedings. We do not however find this response sufficiently compelling fo save the day for the respondent. That the petitioner may have actual prior knowledge of the identification documents rom proceedings elsewhere is nct a consideration sufficiently material to affect our conclusion, Reasonable opportunity to controvert evidence and ventilate one’s cause in a proceeding requires full knowledge of the relevant and material facts specific to that proceeding. ‘One cannot be expected to respond to collateral allegations or assertions made, or be bound by developments that transpired, in somo othor different although related proceodings, except perhaps under situations where facts are rendered conclusive by reason of judgments between the same parties - a situation that does not obtain in the present case. Cihevaise, surprise ~ which is anathema to due process - may result together with the consequent loss of adequate opportunity ta vertitale one's case and be heard. Following Ang Tibay, a decision in a proceeding must be rendered based on the evidence presented at the hearing (of the prococding), or at least contained in the record (of the proceeding) and disclosed to the parties affected (during or at the proceeding) (Res judicata under Rule 29, Section 47, pars. (a) and (b) of the Revised Rules of Court or conclusiveness of judgment under Section 47, par, (c) of the same Rule, 15under which the underlying facts are conclusive on the same parties) 35. ‘We are thus guided in this regard by the basic due process requirement that the right to know and to meet a cage requires that a persen be fully informed of the pertinent and material facis unique to the inquity to which he is called as a party respondent. Under this requirement, reasonable opportunity to contest evidence as critical as the identification documents should have been given the petitioner at the Sandiganbayan-ordered preliminary investigation as part of the fasts he must controvert; othenwise, there is nothing to controveri as the burden of evidence fies with the one who asserts that a probable cause exists. The Ombudsman’s failure in this ragard tainted its findings of probable cause with grave abuse of discretion that effectively nuliifies them” (Victor Jose ‘Tan uy vs. Office of the Ombudsman. et al, supra). ‘We cannot avoid this conclusicn under the constitutional truism that ia the hierarchy of righis, the Bill of Righis fakes precedence over the right of tho Stato to prosecute, and when weighed against each other. the scales of justice tit towards the former’ (Allado va, Digkno, G.R. No. 113630, May 5, 1994, 232 SCRA 192, 210) 36. In view thereof, the dismissef of these cases 2s against Datu Akmad is in order. (¥) The belated and dubious Talusan Affidavit, which was only presented for the first time on appeal and only after the issuance of the DOJ's April 16, 2010 Resolution (which excluded Datu Akmad from these cases), cannot be admitted against Datu Akmad pursuant to Paragraph X (E) of the 2008 «= Manual for Prosecutors. 37. Undoubtedly, the belated and dubious Talusan Affidavit cannet be used as basis for indicting Datu Akmad in these cases pursuant to paragraph X (E) of the 2008 Revised Manual for Prosecutors which specifically states that: “sox Evidence submitted for the first time on appeal shall not be admitted. If submitted, the reviewing prosecutor shall disregard it xxx.” 1638. Evidently, the 2008 Revised Manual For Prosecutors was issued much later than the 2000 NPS Rule on Appeal. Such baing the case, the 2008 Revised Manual For Prosecutors and Section 1, Rule 137 {which both prohibit the introduction of evidence for the first time on appeal}, must be given much weight and consideration in disregarding the Talusan Affidavit (which was only introduced for the first time on appeal to serve as sham basis for the indictment of Datu Akmad in these cases}. 39. Inasmuch as the admission by the DOW of the belatedly filed and cubious Talusan Affidavit was irregularly done, coupled by the fact thal the recommendations of the DOJ are net binding upon the Honoreble Court (which is not @ surrogate of the DOu)}, the dismissal of ‘he present harassment cases as against Datu Akmad based on the control powers of the Honorable Court is, therefore, in order. 40. Te this end, the DOJ held in its Resolution dated October 27, 2008 in the case entitled “Sylvia K, Ilusorio vs. Ramon K. Ilusorio, Erlinda K. Ilusorio, et al., LS. No. 02F-2226,” that: “For purposes. of“ ilhiiminating any misconception en the matier, this Office hereby clanfies that Section 13 of Department Circular No. 70 provides for the filing of only one motion for reconsideration against the Resolution issued on appeal, and prohibits the filing of a second or farther motion for reconsideration. Parenthetically, while it may be obgerved that a resolution issued on appeal almost always favors one party over the other, there are also instances where a resolution issued on appeal cortain pronouncements prajudictal to the claims of both contencing parties. Accordingly, when the Department resolves an appeal/petition for review, it Issues a resolution on appeal, and either er both parties may, if they find themselves aggrieved thereby, file a motion for reconsideration thereon with proof of service of copies thereof to the adverse party and the prosecution office concerned. Once a motion for reconsideration ie filed by either or both parties, the Department then undertakes proceedings an this 1* motion for reconsideration wherein the other contending parties may avail of the opportunity to participate via the appropriate proceeding, i.e, comment or opposition, in accordance with the fundamental tenets of due Process. xxx.” (Emphasie stippliod} 1741, Furthermore, Private Complainants’ April 30, 2010 further Motion fot Reconsideration (Annex 19, Motion to Dismiss}, which belatedly submitted Talusan’s Affidavit (Annex 20, Motion to Dismiss), was done |n violation of the Omnibus Motion Rule. This Is clear under Section 8, Rule 16 of the Rules of Court which explicitly states that “Sec, 8. Omnibus motion. — Subject to the provisions of Section %, Rule 8, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and alf objections not so included shall be deemed waived." (Emphasis supplied) 42. In disallowing the presentation of new evidence not presented in the original motion, the Supreme Court held in Spouses German Anunciacion et al., vs. Perpetua M. Bocanegsa, ef al,, GR. No. 12498, July 30, 2008, that “oo, respondents’ Supplemental Motion 0 ard Second Supplemental Motios xxx were clearly in violation of Rule 15, Section & xxx of the Rules. Rule 15, Section 8 of the Rules provides: Sec, 8. Omnibus motion. — Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shalt include all objections then available, and all objections not so included shall be deemed waived.” (Emphasis stpplied) 43. Evidently, “(aimess and due process dictate that evidence and issues not presented below cannot be taken up for the first time on appeal” [Sanche7 vs Court of Appeals, G.R, No. 108947, (1997); Reduriano vs. Court of Appeals, 361 Phil, 284, 304, January 21, (1999), In Lim vs Queensland Tokyo Commodities, GR. No. 136031, January 4, 2002, the Supreme Court further held that: “Anent the last assigned error, petitioner faults the appellate court for not taking judicial notice of the cease and desist order against the Mania International Futures Exchange Commission and ali commodity traders including respondent. However, we find that this issue was first raised only in 18potitioner’s motion for recorsideration of the Court of Appeals’ decision. It was never raised in the Memorandum filed by petitioner before the trial court. Hence, this Court cannot now, for the first time on appeal, pass upon this issue. For an issue cannot be raised for the first time on appeal. It must be raised seasonably in the proceedings before the lower court, Questions raised on appeal must be within the issues framed by the parties and, consequently, issues not raised in the trial court cannot be raised for the first time on appeal.” (Emphasis supplied) 44. In Corporation vs. Manuel A, David, Sr. et al, G.R. No. 169548, March 18, 2010, the Supreme Court likewise emphasized that: “if well-recognized jurisprudence precludes raising an issue only for the first time on appeat proper, with more reason should such issue be disallowed or disregarded when initially raised only in a motion for reconsideration of the decision of the appellate court”, as in the case. (Emphasis supplied) 45. Applying the foregcing law and jurisprudence, Private: Complainants’ ‘ilure to present the dubious Affidavit of Abdul Talusan in the preliminary investigation stage and in their vory first Metion for Reconsideration to the Resolution of the Secretary of Justice dated April 16, 2010 (which correctly excluded Datu Akmad from the subject crimes) (Annex 47, Motion to Dismiss), was fatal to their cause. By not presenting Talusan’s Affidavit (Annex 20, Motion to Dismiss) at the very first opportunity, Private Complainants arc already deemed to have waived the presentation of Talusan's Affidavit for obvious reasons. Such being the case, the Honorable Court, should not give due: consideration to Telusan's bolatedly filed Affidavit which was clearly manufactured just to implead Datu Akmnad and.all Ampatuans in these cases, {vi) The belated and dubious Talusan Affidavit cannot be used as basis for indicting Datu Akmad in these cases without serious violations of his rights to due proces: 1946. In its Opposition, the Prosecution likewise insists that; “Moreover, accused cannot claim that his procedural and substantive rights have been vilaled for his failure to controvert the affidavit of Abdul Talusan. A careful review of the records of the case would establish that he was able to submit hie counter-affidavit wherein he extensively discussed and presented his arguments on why he should net be indicted in the instant case. He even filed a petition for roviow before the Depariment of sustice questioning the resolution ot the investigating prosecutors" (at pp. 4 to 5) 47. Again, the Prosecution misieads the Honorable Court. A distinction must be made concerning the supposed observance of due process before the submission of the Talusan Affidavit before the DOJ and thereafter. 48. _ It ie worthy of note that because of the filing of his Counter-Affdavit and Petition for Review before the DOJ, Datu Akmad was excluded and his name ordered dropped as Respondent in these cases by then Justice Secretary Alberto C. Agra in the latter's Resolution dated April 16, 2010. Thus, at the time of his exclusion from these cases on the basis of the Agra Resolution dated April 18, 2010, Datu Akmad was indeed given due process. However, this scenario happened prior to the submission end illegal admission of the Talusan Affidavit which Atty. Nena Santos submitted for the first time in her Supplemental Motion for Reconsideration on appeal before the DOJ. 49. After the submission of the dubious Talusen Affidavit and the issuance of the questioned May §, 2010 Resolution of the DOJ, however, no due process wes ever given to Datu Akmad as he was nat given any opportunity tc controvert or oppose Atty. Nena Santos’ Supplemental Motion for Reconsideration and the belatedly filed Talusan Affidavit That was the reason why Datu Akmad cries foul as his indiciment for the subject crimes was done illegally, un-procedurally and irregularly, 50, Undoubfedly, the proceedings against Datu Akmad must be nullified for sorious violations of his constitutional rights. As feld by the Supreme Court in People of the Philippines vs, Jud ran etc, et al., G.R. No. 148000, February 27, 2003, that: 20“The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. xx Where the denial of the ‘undamental right of due process is apparent, a decision rendered in disregard of that fight Is void for lack of jurisdiction (Aducayen vs. Flores, L-30370, [May 25, 1973] 51 SCRA 78. Shell Co, vs. Enage, L-30111-12, 48 SCAA 418 [Feb. 27, 1970]. Any judgment or decision rendered notwithstanding such violation may be regarded as a ‘lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head’ (Adueayen vs. Flores, supra).” (Emphasis supplied) 5, In Lejano vs. People, G.R. Nos. 178389 end 176864, December 14, 2010, the Supreme Court likewise emphasized thet “A review of the proceedings during preliminary investigation and trial showed that the prosecution did not fare much better, for it commited acts of prosecutorial misconduct thal effectively deprived the accused of their constitutionally guaranteed right to due process. At the outset, it cannat be overemphasized that the prosecuting officer 'is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compeling as its obligation to govern al all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shail be done. As such, he is in a peculiar and very definite sense the servant of the lew, the twofold ait of which is that guit shall not escape or innocence suffer. He may prosectte with earnestness and vigor — indeed, he should co so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methads calculated to produce @ wrongful conviction as it is to use every legitimate means to bring about a just one. In the words of Richard Refshauge: ‘The adversarial systerm . . . is rooted in the notion of a contest with winners and losers, yet the prosecutor is ethically forbidden from embracing that notion. The question then, is net whet will make the prospect of a conviction move certain, but what is fair ard what will contribute to Justice. Thus, a criminal trial is not about personal redress for the victims, bul abou: determining the guilt and the just punishment of the accused. What is in truth referred to when expanding on the concept of 2“fair trial” is thar the rights of the accused are protected, fo the extent necessary to ensure fairness for him, Rights of the victim are not ignored, but they are respected only to the extent that they are consistent with the faimees of the trial for the accused. The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its seif- preservation, nay, ts very existence. But this docs not confer a ficense for paintless aesaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution, Henoe, even if we apply in this case the "multifactor balancing test” which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners,” as in this case.” (Emphasis supptiéa) 62, “While we condemn the killing of the fifty-seven (67) victims of the “Maguindanao Massacre", nevertheless, med'a, if not public cutrage cannot be & teason for a sweeping and senseless indictment. To b2 sure, ff a life is taken, justice demands that the wrong be redressed, but this same justice that calls for retibulion cannot be the same one that would convict the accused whose guitt cannot be proven beyond reasonable doubt (People vs. Vasquez, 280 160 cited in the DOJ's April 16, 20/0 Resolution, at p. 12) $3. “In all criminal cases, speculation and probabilities cannot take the place of proof required fo establish guilt of an accused beyond reasonable doubt. Suspicion, no matter how strong, cannot sway judgment (People vs. Isla. 278 SCRA 47, People vs. Balderas, 276 SCRA 470). The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass (People ys. Geron, 281 SCRA 36). Indeed, direct proof of conspiracy is rarely found, for criminais do not write down their lawless plaiis and plots (People vs, Cawaling, 293 SCRA 267), However, relationship alone with the principal suspact, x does not imply conspiracy and cannot justify the indictment of respondents xxx for the murder of the fifty-seven (57) victims of the 22“Maguindanac Massacre” (People vs. Ferras, 289 SCRA 94 cifed in the DO's Apiil 16, 2010 Resolution, at 9. 12). 54. Verily, ill-mctivated cases must be prevented from thriving into legitimate tawsuits for these are not only contrary to public policy, but disruptive ‘of the orderly administration of justice. 55. Failing to prove its case before the prosecution, Private Complainants shou'd oe denied further room to make whimsical and sweeping generalizations by impleading any and all persons who are clearly innocent of any wrongcoing. It should ba noted that the right of Complainants to prosecute their causes must be subordinated to the primordial aim of our criminal justice, ie., secure justice for all; not whimsically incarcerate end capriciously persecute innocent people for purposes of personal vendetta. (vii) Datu Akmad presented clear and convincing documented proofs that it was unbelievable and physically impossible for him to have —_ allegedly participated in the supposed planning and subsequent killing of the members of the Mangudadatu convoy. 56. There is no question that ong before November 23, 2009, Datu ‘Akmad hadi invited several doctors fram Manila who would bring medicines and medical supplies to Mamasapano, Maguindanao for some medical mission. 57. As early as November 22, 2009 and fong before thereto, Datu Akmad was very busy preparing for said medical mission to be held on Novernber 23, 2099 at Mamasapano, Maguindenao. 58. Datu Akmad tasked several of his men to fetch the doctors at the airport on November 23, 2009 and to bring the medicines and medical supplies to Mamasapano, Maguindanao so they could be sorted out, 59. The medical mission was conducted as schaduled on November 23, 2009 at the municipat gymnasium of Mamasapano from 7:00 A.M. until 5:00 PM. 2360. medical mission AM. (where he ale his breakfast and lunch) up fo the time when the medical mission ended al around 5:00 o'clock in the afternoon of November 23, 2909. 61. Marnasapano, Maguindanao on November 23, 2009, which were attached fo Datu Akmad personally attended and supervised the subject This undeniable fact ie evidenced by photos and videos of Datu Akmad in said medical mission and attested oy numerous disinterested persons who all confirm the presence of Datu Akmad at said medical mission at Datu Akmad’s Motion (9 Dismiss, as follows: @ i) dil) iy) Photos showing the arrival of the Smart Network Intemational, Inc., medical team at Awang, Airport, Datu Odin Sinsuat, Maguindanao at around 11.00 o'clock in the morning of November 22, 2008 which are hereby atiached as Annexzs 1 and 2, respectively: Photo Report relative to the medical mission of Smart Network Intemational, Inc. neaded by Dr. Joey M Synchioco at Mamasapano, Maguindanae from November 22, 2009 to Novernber 23, 2009 which is hereby attached as Annex 3; Photo of Dr. Joey M. Synchicco preparing his kits anc medicines for a patient who will undergo a minor operation which is attached as Annex 4; Photo of Dr, Joey M. Synchioco while doing an operation (Datu Akmad is seen slightly at the back ground) which is attached as Annex 5; Photo showing Datu Akmad helping the organizers with the jist of medical services which wil be rendered to the beneficiaries which is attached as Annex 6; Photo showing the Municipal omployoos of Mamasapano who are busy preparing the kits, 24 In fact, Datu Akmad stayed in Mamasapane from around 7:30wii) (uly fix) (xi) id, oxi) medical supplies and medicines that would be utilized in the medica! mission which is attached as Annex 7: Phola showing Mr. Kesid in the act of pulling the pants of his son after the laiter’s circumeision which is attached as Annox 8; Photo of a Municipal Health Worker preparing the kits/equipment for the denial services which is attached as Annex 9; Photo of Datu Akmad observing how the cireumcisions were being done which is attached as Annex 10: Photo of Datu Akmad around 9 o'clock in the mosring of November 23, 2000 while he was walking around the gymnasium to see to it that everything was in order and that the medicines were properly distnbuted to the patients and beneficiaries attached as Annex 14, Photo of Datu Akmad while listening to a message being delivered by a host which is etlached as Annex 12; Photo of people around 10 o'clock in the moming of November 23, 2009 while they continue to arrive at the municipal gym of Mamasapanc to avail of the medical and dental services which Datu Akmad sponsored which is attached as Annex 13; Joint Affidavit of Totoy Monroy Kesid, Municipal Administrator of the Municipality of Mamasapano; Mansor N. Akmad and Alhamde A. Kadtong, Municipal Planning and Development Coordinator and Assistant Planning and Development Coordinator, 25respectively of Mamasapano, Maguindaneo which is attached as Annex 14. (Messs. Kesid, Akmad and Kadtong attest that on November 22, 2009, they fetched the medical team of Smart Network International, Inc., from. Awang. Aipor, Datu Odin Sinsvat, Maguindanao and brought the members of the medical team to 2 hotel for their scheduled medical mission at Mamasapano, Maguindanao on November 23, and 24, 2009 Messrs. Kesic, Akmad and Kadtong further attest that they took photos and videos of the medical mission showing that Datu Akmad personally supervised the medical mission from around 7:30 AM. up to 5:00 P.M, of November 23, 2069) 62. From the foregaing. if is clear that Datu Akmad presented clear and convincing documented proofs that it was unbelievable and physically impossible for him to have allegedly particivated in the supposed planning and subsequent killing of the members ef the Mangudadatu convoy. Consequently, the dismissal of these cases as against Datu Akmad is in order. As held by the Supreme Court in Lejeno ve. People, G.R. No. 176389. December 14, 2010: “@_ Allbl versus positive identification XK XxX. yor But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi, So how can such accused penetrate a mind that has been made cynical by the tule drilled into his head that a defense of alibi is a hangman's noose in the face of a witness positively swearing, "I saw him do it"? Most judges believe that such assertion aulcmatically dooms an alii whieh is so easy (0 fabricate, This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of provailing over such a stone-cast tenet? ‘There is only one way. A judge must keep an ‘open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish 26the Job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused's claim that he did not do it. A lying witness can make as positive an identification ae a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!” without blinking an eye. Rather, to be acceptable. the positive identification must meet at feast two criteria: Eirst, the positive identification of the offender must come from a eredible witness, She is credisle who can be irusted to tell the truth, usually based on past exoeriences with her. Her word has, to one who knows her, its weight in gold. And second. the wilness’ story of what she personaly saw must be believable, not inherently contrived, A winess who testifics about something she never saw runs into inconsistencies and makes bewildoring claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above ortetia. 2K XXX AXA 7. Effect of Webb's alibi to others Webb's documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Femandez, Gatchalian, Radriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S, when the crime took place, Alfaro’s testimony will not hold together. Webb's participation is the anchor of Alfaro’s story. Without it, the evidence against the others must necessarily fall.” CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an oven mind is willing to explore all possibiilies, but whether it entertains a reasonadle, lingering doubt as to his gui, For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inter being, like a piere of meat lodged immovable between teeth” (Emphasis supplied) 263. More importantly, the Affidavits of supposed prosecution witnesses in these cases do not cisclose, even remotely, Datu Akmac’s alleged involvement in the subject crimes. In fact, there is totally no direct or indirect evidence showing Datu Akmad’s supposed involvement in these crimes. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of tho case as its dismissal or the convietion or acquittal of the accused rests in the sound discretion of the Court, The determination of the case is within tts exclusive jurisdiction and competence (Crespo vs. Mogul, G.R, No. -53373, June 30, 1887, 151 SCRA 462, 467) 64, In Martinez vs, Court of Apoaals, G.R No. 112387, Octover 13, 1994, 237 SCRA 575, the order of the trial court was declared not valid because the dismissal of the criminal action was, an “erroneous exercise of judicial discretion" relying hook, fine, and sinker on the resolution of the Secretary of Justice, without making its own independent determination of the morits of the said resolution.” 85. ‘Regardless of whether the recommendation of the Secretary of Justice is valid or not, it is the absence of the judge's own evaluation of the issue posed before him that makes an order void. It is the duty of the trial judge to make an independent assessment and finding of the evidence, it not being sufficient for the valid exercise of judicial discretion to merely accept the prosecutor's word for its sufficiency or insufficiency. Without such finding, the order of the court denying or granting the motion to dismiss is void” (Ark Travel Express. Inc. vs. Abrogar, G.R. No. 137010, August 29, 2003, 410 SCRA 148, 158, Herere, Remedial Law, Vol. IV, 2001 Edition, p. 249), 88. in Ledesma vg, Court of Appeals, G.R. No. 113216, September 5, 14997, the Supreme Court made it clear that Judges can dismiss the case for insufficiency of evidence at any: stage of the proceedings after an independent assessment of the evidenct’ before it (and even after the issuance of warrant of arrest) and in the following wise: “When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the Secretary of Justice, the bounden duty of the trial court is to 28make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the Secretary's ruling is persuasive, it is not binding on courts. A trial court however, commits reversible error or even grave abuse of discretion if it refusesineglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jorisdiction ever the criminal action. Despite the pronouncement in Marcelo that a final resolution of the appeal to the Dezartment of Justice is necessary, both decisions followed the rule in Crespo vs. Moguf. Ono a complaint or information is fled in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court Trial judges are thus required to make their own assessment of whether the Scoretary of Justice committed gravo abuso of discretion in granting or denying the appeal, separately and indepencently of the prosecution's or the secrciary’s evaluation that such evidence is insufficient or that no probable cause to hold the accused for tral exists. They should embody such assessment in their written order disposing of the motion. in the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correciness of the justice secretary's resolution has been amply threshed out in petitioner's letter, the information, the resolution of the Secretary of Justice, the motion 10 dismiss, anc even the exhaugiive discussion in the motion for reconsideration — all @f which were submitted to the court — the trial judge committed greve abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial court's order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s} presented in the motion to dismiss. The trial judge was tasked to evaluate the secretary's recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled :~ proceed with the trial without stating his reasons for disregarding the secretary's recommendation. Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel. It must be noted that “the nile therefore in this jurisdiction is that once @ complaint gf information is filed 29in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused resis 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." (Baltazar vs. People, G.R No. 174016, July 28, 2008 citing the case of Crespo vs Mogul, GR. No, L-63373, June 50, 1987) Ineluctably, Judge Asuncion’s denial of the motion to withdraw the information and tho reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the Secretary of Justice. All in all. s2h rash action did not do justice to the sound ruling in Crespo vs. Moguf upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial courts to make an independent assessment of the merits of the motion.” (Emphasis supplied) 67. Verily, this Honorable Court has the power and authority to dismiss this harassment suit for want of probable cause &'any stage of the proceedings ard with or without any pro forma warrant of arrest against them. 68. “Hence, if upon the filing of the information in court the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists must either cali for the complainant and the winesees themselvas or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause oxists (Emphasis suppliea) (Alado vs. Diokne, etal, G.R. No, 113630, May 5, 1994). 69. “It is the duty of the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to custain a prima facie case or that no probable cause exists fo form a sufficient belief as to the guilt of , (134 SCRA 438))" the accused (Emphasis supplied) [Salonga vs. 3070, In view of the foregoing, Datu Akmad respectfully moves for the dismissai of these cases; withdrawal of the Informations: and quashal of the Warrant of Arrest, Commitment Order and other orders and processes issued against him in these cases. - RELIEF WHEREFORE, it is raspecttully prayed that: {) the baseless Informations in (hese cases against Datu Akmad “Tato” Ampatuan, Sr, be quashed, dismissed and/or ordered withdrawn; (i) the illegal: Warrant of Arrest, Commitment Order and other orders and processes against Dalu Akmad “Tato” Ampatuan, Sr., be quashed; and (ii) Datu Akmad “Tato” Ampatuan, Sr., be released from legal detention Other equitable retiefs are likewise prayed for. Makati City for Quezon Gity, October 10, 2011. REAL BROTARLO & REAL Law Firm Lead Counset for Datu akmad "Tato’ Ampatuan, SF. 4” Floor Citylanc 10 Tower |, 156 H.¥. Dela Costa Street Ayale Avenue North, Makati City. Philippines, Tel, Nos. 883-3399; 753-1374; 408-2018, Telefax No. 899-3989 Website. woerebrfirm.com, Email: eorlawfirm@gmait.com By: fe PARIS G, REAL Roll of ttorneys No. 42574 MCLE Complience No. II-0006704; Decemacr 21, 2009 PTR #2842930; 1-04-2011; City of Makatt TBP # 842647, 1-05-2011; Makat Clty Craoter 31MCLE Compliance No, lI-O0068887; December 21, 2008 PTR# 2642990: 1-04-2011; Melati City Chapter 1B? # 844845, 1.05-2011; Valo City Chapter SHERWIN G. REAL Roll of Atjonays No. 4664 MCLE Compliance 1b. H1-0006705, December 21, 2009 TBP # 844648; 1-05-2011; Makati City Chapter PTR # 2642022: 1-04-2011, Gity of Mekal Service By Registered Matt Except for the copios intended for this Honorable Court and the DOJ, other copies of this pleading are being served upon the otfier concemed parties by registored mail because the Firm mamentarily lacks manpower to do s0. Copy Furnished: Panel of Prosecutors Handling the Maguindanao Massacre Cases.“ (By Personal Service) Department of Justice Padre Faura, Manila Roque & Butuyan Law Offices Unit 1904, Ante! Corporate Center 421 Valero Street, Salcedo Village, Makati City Atty. Nena A. Santos/ Atty. Ma, Gemma J. Oquendo ACEPAL Building, Mabini Extension Keronadal City Atty. Prima Jesusa B. Quinsayas Freedom Fund for Filipino Journalists clo Center for Media Freedom and Responsibility 2/F Ateneo Professional Schools-Salcedo 150 H.V, Dela Costa Street Salcedo Vilage, Makati City Atty. Rachel F. Pastores Public Inforest Law Center 4f Kaija Bidg., 7836 Makati Avenue cor. Valdez Strest, Makati City Atty. Pete Principe Volunteers Against Crime and Corruption Unit 2005, Astoria Plaza 15 Escriva Drive, Ortigas Center, Pasig City 32Atty. Carlos isagani Zarate 2° Flaor, Valdevieso Building Ecoland Subdivision Matina, Davao City (Dats Atrned Reply (Qopo-1470) Be Lt7 33