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G.R. No.

216920 January 13, 2016 sufficiently complied with Section 4, Rule 112 of the Rules
of Court which requires the prior written authority or
GIRLIE M. QUISAY, Petitioner, approval by, among others, the City Prosecutor, in the
filing of Informations.12
vs.
PEOPLE OF THE PHILIPPINES, Respondent. Petitioner moved for reconsideration,13 which was,
however, denied in an Order14 dated July 10, 2013.
DECISION
Aggrieved, petitioner elevated the matter to the CA via a
petition for certiorari.15
PERLAS-BERNABE, J.:
The CA Ruling
Assailed in this petition for review on certiorari1 are the
Decision2 dated October 10, 2014 and the Resolution3
In a Decision16 dated October 10, 2014, the CA affirmed
dated January 30, 2015 of the Court of Appeals (CA) in
the RTC ruling. It held that pursuant to Section 9 of RA
CA-G.R. SP No. 131968, which affirmed the denial of
10071,17 otherwise known as the "Prosecution Service Act
petitioner Girlie M. Quisay's (petitioner) Motion to Quash
of 201 O," as well as OCP-Makati Office Order No. 32, the
before the Regional Trial Court of Makati, Branch 144
City Prosecutor of Makati authorized SACP Hirang to
(RTC).
approve the issuance of, inter alia, resolutions finding
probable cause and the filing of Informations before the
The Facts
courts. As such, SACP Hirang may, on behalf of the City
Prosecutor, approve the Pasiya which found probable
On December 28, 2012, the Office of the City Prosecutor
cause to indict petitioner of violation of Section 10 of RA
of Makati City (OCP-Makati) issued a Pasiya4 or Resolution
7610.18
finding probable cause against petitioner for violation of
Section 10 of Republic Act No. (RA) 7610,5 otherwise
Further, it held that the Certification made by ACP De La
known as the "Special Protection of Children Against
Cruz in the Pabatid Sakdal clearly indicated that the same
Abuse Exploitation and Discrimination Act." Consequently,
was filed after the requisite preliminary investigation and
a Pabatid Sakdal6 or Information was filed before the RTC
with the prior written authority or approval of the City
on January 11, 2013 charging petitioner of such crime.
Prosecutor. In this regard, the CA opined that such
Certification enjoys the presumption of regularity
On April 12, 2013, petitioner moved for the quashal of the
accorded to a public officer's performance of official
Information against her on the ground of lack of authority
functions, in the absence of convincing evidence to the
of the person who filed the same before the RTC. In
contrary.19
support of her motion, petitioner pointed out that the
Pasiya issued by the OCP-Makati was penned by Assistant
Undaunted, petitioner moved for reconsideration,20 but
City Prosecutor Estefano H. De La Cruz (ACP De La Cruz)
was denied in a Resolution21 dated January 30, 2015;
and approved by Senior Assistant City Prosecutor Edgardo
hence, this petition.
G. Hirang (SACP Hirang), while the Pabatid Sakdal was
penned by ACP De La Cruz, without any approval from
The Issue Before the Court
any higher authority, albeit with a Certification claiming
that ACP De La Cruz has prior written authority or approval
The core issue for the Court's resolution is whether or not
from the City Prosecutor in filing the said Information. In this
the CA correctly held that the R TC did not gravely abuse
regard, petitioner claimed that nothing in the aforesaid
its discretion in dismissing petitioner's motion to quash.
Pasiya and Pabatid Sakdal would show that ACP De La
Cruz and/or SACP Hirang had prior written authority or
The Court's Ruling
approval from the City Prosecutor to file or approve the
filing of the Information against her. As such, the
The petition is meritorious.
Information must be quashed for being tainted with a
jurisdictional defect that cannot be cured.7
Section 4, Rule 112 of the 2000 Revised Rules on Criminal
Procedure states that the filing of a complaint or
In its Comment and Opposition,8 the OCP-Makati
information requires a prior written authority or approval of
countered that the review prosecutor, SACP Hirang, was
the named officers therein before a complaint or
authorized to approve the Pasiya pursuant to OCP-Makati
information may be filed before the courts, viz.:
Office Order No. 32.9 Further, it maintained that the
Pabatid Sakdal was filed with the prior approval of the City
SECTION 4. Resolution of investigating prosecutor and its
Prosecutor as shown in the Certification in the Information
review. - If the investigating prosecutor finds cause to hold
itself.10
the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information
The RTC Ruling
that he, or as shown by the record, an authorized officer,
has personally examined the complainant and his
In an Order11 dated May 8, 2013, the RTC denied
witnesses; that there is reasonable ground to believe that
petitioner's motion to quash for lack of merit. It found the
a crime has been committed and that the accused is
Certification attached to the Pabatid Sakdal to have
1
probably guilty thereof; that the accused was informed of and have the necessary information or complaint
the complaint and of the evidence submitted against him; prepared or made and filed against the persons
and that he was given an opportunity to submit accused,"24 he may indeed delegate his power to his
controverting evidence. Otherwise, he shall recommend subordinates as he may deem necessary in the interest of
the dismissal of the complaint. the prosecution service. The CA also correctly stressed that
it is under the auspice of this provision that the City
Within five (5) days from his resolution, he shall forward the Prosecutor of Makati issued OCP-Makati Office Order No.
record of the case to the provincial or city prosecutor or 32, which gave division chiefs or review prosecutors
chief state prosecutor, or to the Ombudsman or his deputy "authority to approve or act on any resolution, order,
in cases of offenses cognizable by the Sandiganbayan in issuance, other action, and any information
the exercise of its original jurisdiction. They shall act on the recommended by any prosecutor for approval,"25 without
resolution within ten (10) days from their receipt thereof necessarily diminishing the City Prosecutor's authority to
and shall immediately inform the parties of such act directly in appropriate cases.26 By virtue of the
action.1âwphi1 foregoing issuances, the City Prosecutor validly
designated SACP Hirang, Deputy City Prosecutor
No complaint or information may be filed or dismissed by Emmanuel D. Medina, and Senior Assistant City Prosecutor
an investigating prosecutor without the prior written William Celestino T. Uy as review prosecutors for the OCP-
authority or approval of the provincial or city prosecutor or Makati.27
chief state prosecutor or the Ombudsman or his deputy.
In this light, the Pasiya or Resolution finding probable cause
x x x x (Emphases and underscoring supplied) to indict petitioner of the crime charged, was validly made
as it bore the approval of one of the designated review
Thus, as a general rule, complaints or informations filed prosecutors for OCP-Makati, SACP Hirang, as evidenced
before the courts without the prior written authority or by his signature therein.
approval of the foregoing authorized officers renders the
same defective and, therefore, subject to quashal Unfortunately, the same could not be said of the Pabatid
pursuant to Section 3 (d), Rule 11 7 of the same Rules, to Sakdal or Information filed before the RTC, as there was no
wit: showing that it was approved by either the City Prosecutor
of Makati or any of the OCPMakati' s division chiefs or
SECTION 3. Grounds. - The accused may move to quash review prosecutors. All it contained was a Certification
the complaint or information on any of the following from ACP De La Cruz which stated, among others, that
grounds: "DAGDAG KO PANG PINATUTUNAYAN na ang paghahain
ng sakdal na ito ay may nakasulat na naunang pahintulot
xxxx o pagpapatibay ng Panlunsod na Taga-Usig"28 - which
translates to "and that the filing of the Information is with
(d) That the officer who filed the information had no the prior authority and approval of the City Prosecutor."
authority to do so;
In the cases of People v. Garfin,29 Turingan v. Garfin,30
x x x x (Emphasis and underscoring supplied) and Tolentino v. Paqueo,31 the Court had already
rejected similarly-worded certifications, uniformly holding
In this relation, People v. Garfin22 firmly instructs that the that despite such certifications, the Informations were
filing of an Information by an officer without the requisite defective as it was shown that the officers filing the same
authority to file the same constitutes a jurisdictional infirmity in court either lacked the authority to do so or failed to
which cannot be cured by silence, waiver, acquiescence, show that they obtained prior written authority from any of
or even by express consent. Hence, such ground may be those authorized officers enumerated in Section 4, Rule
raised at any stage of the proceedings.23 112 of the 2000 Revised Rules of Criminal Procedure.

In the case at bar, the CA affirmed the denial of Here, aside from the bare and self-serving Certification,
petitioner's motion to quash on the grounds that: (a) the there was no proof that ACP De La Cruz was authorized to
City Prosecutor ofMakati may delegate its authority to file the Pabatid Sakdal or Information before the RTC by
approve the filing of the Pabatid Sakdal pursuant to himself. Records are bereft of any showing that the City
Section 9 of RA 10071, as well as OCP-Makati Office Order Prosecutor of Makati had authorized ACP De La Cruz to do
No. 32; and (b) the Pabatid Sakdal contained a so by giving him prior written authority or by designating
Certification stating that its filing before the RTC was with him as a division chief or review prosecutor of OCP-Makati.
the prior written authority or approval from the City There is likewise nothing that would indicate that ACP De
Prosecutor. La Cruz sought the approval of either the City Prosecutor
or any of those authorized pursuant to OCP-Makati Office
The CA correctly held that based on the wordings of Order No. 32 in filing the Pabatid Sakdal. Quite frankly, it is
Section 9 of RA 10071, which gave the City Prosecutor the simply baffling how ACP De La Cruz was able to have the
power to "[i]nvestigate and/or cause to be investigated all Pasiya approved by designated review prosecutor SACP
charges of crimes, misdemeanors and violations of penal Hirang but failed to have the Pabatid Sakdal approved by
laws and ordinances within their respective jurisdictions,

2
the same person or any other authorized officer in the
OCP-Makati.

In view of the foregoing circumstances, the CA erred in G.R. No. 195956 March 11, 2015
according the Pabatid Sakdal the presumption of
regularity in the performance of official functions solely on ABS-CBN CORPORATION, Petitioner,
the basis of the Certification made by ACP De La Cruz
vs.
considering the absence of any evidence on record
clearly showing that ACP De La Cruz: (a) had any authority
FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L.
to file the same on his own; or (b) did seek the prior written FLORES, JESSICA A. SORO, GRACE DELA PENA-REYES,
approval from those authorized to do so before filing the JOHN OLIVER T. MANALASTAS, JOHN DOES AND JANE
Information before the RTC. DOES, Respondents.

In conclusion, the CA erred in affirming the RTC's dismissal DECISION


of petitioner's motion to quash as the Pabatid Sakdal or
Information suffers from an incurable infirmity - that the LEONEN, J.:
officer who filed the same before the RTC had no authority
to do so. Hence, the Pabatid Sakdal must be quashed, The main issue in this case is whether there is probable
resulting in the dismissal of the criminal case against cause to charge respondents with infringement under
petitioner. Republic Act No. 8293, otherwise known as the Intellectual
Property Code. The resolution of this issue requires
As a final note, it must be stressed that "[t]he Rules of Court clarification of the concept of "copyrightable material" in
governs the pleading, practice, and procedure in all relation to material that is rebroadcast live as a news story.
courts of the Philippines. For the orderly administration of We are also asked to rule on whether criminal prosecution
justice, the provisions contained therein should be for infringement of copyrightable material, such as live
followed by all litigants, but especially by the prosecution rebroadcast, can be negated by good faith.
arm of the Govemment."32
ABS-CBN Corporation (ABS-CBN) filed the Petition for
WHEREFORE, the petition is GRANTED. The Decision dated Review on Certiorari1 to assail the November 9, 2010
October 10, 2014 and the Resolution dated January 30, Decision2 and the March 3, 2011 Resolution3 of the Court
2015 of the Court of Appeals in CA-G.R. SP No. 131968 are of Appeals. The Court of Appeals reinstated the
hereby REVERSED and SET ASIDE. Accordingly, the Department of Justice Resolution dated August 1, 2005
Information against petitioner Girlie M. Quisay is QUASHED that ordered the withdrawal of the Information finding
and the criminal case against her is DISMISSED. probable cause for respondents’ violation of Sections 1774
and 2115 of the Intellectual Property Code.6 Respondents
SO ORDERED. are officers and employees of GMA Network, Inc. (GMA-
7). They are: Felipe Gozon (Gozon), GMA-7 President;
Gilberto R. Duavit, Jr. (Duavit, Jr.), Executive Vice-
President; Marissa L. Flores (Flores), Vice-President for New
and Public Affairs; Jessica A. Soho (Soho), Director for
News; Grace Dela Peña-Reyes (Dela Peña-Reyes), Head
of News and Public Affairs; John Oliver Manalastas
(Manalastas), Program Manager; and others.

The controversy arose from GMA-7’s news coverage on


the homecoming of Filipino overseas worker and hostage
victim Angelo dela Cruz on July 22, 2004. As summarized
by the Court of Appeals:

Overseas Filipino worker Angelo dela Cruz was kidnapped


by Iraqi militants and as a condition for his release, a
demand was made for the withdrawal of Filipino troops in
Iraq. After negotiations, he was released by his captors
and was scheduled to return to the country in the
afternoon of 22 July 2004. Occasioned by said
homecoming and the public interest it generated, both . .
. GMA Network, Inc. . . . and [petitioner] made their
respective broadcasts and coverage of the live event.7

ABS-CBN "conducted live audio-video coverage of and


broadcasted the arrival of Angelo dela Cruz at the Ninoy
Aquino International Airport (NAIA) and the subsequent

3
press conference."8 ABS-CBN allowed Reuters Television held that good faith may be raised as a defense in the
Service (Reuters) to air the footages it had taken earlier case.24 The dispositive portion of the Resolution reads:
under a special embargo agreement.9
WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in
ABS-CBN alleged that under the special embargo I.S. No. 04-10458 is considered meritorious and is hereby
agreement, any of the footages it took would be for the GRANTED. This case is hereby Dismissed, the resolution of
"use of Reuter’s international subscribers only, and shall be the City Prosecutor of Quezon City is hereby reversed and
considered and treated by Reuters under ‘embargo’ the same is ordered to withdraw the information if any and
against use by other subscribers in the Philippines. . . . [N]o report action taken to this office within ten (10) days.25
other Philippine subscriber of Reuters would be allowed to (Emphasis in the original)
use ABS-CBN footage without the latter’s consent."10
Both parties moved for reconsideration of the Gonzalez
GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Resolution.26
Peña-Reyes, and Manalastas are connected, "assigned
and stationed news reporters and technical men at the Meanwhile, on January 19, 2005, the trial court granted the
NAIA for its live broadcast and non-live news coverage of Motion to Suspend Proceedings filed earlier by Dela Peña-
the arrival of dela Cruz."11 GMA-7 subscribes to both Reyes and Manalastas.27 The trial court Order reads:
Reuters and Cable News Network (CNN). It received a live
video feed of the coverage of Angelo dela Cruz’s arrival Perusing the motion, the court finds that a petition for
from Reuters.12 review was filed with the Department of Justice on January
5, 2005 as confirmed by the public prosecutor. Under
GMA-7 immediately carried the live news feed in its Section 11 (c), Rule 116 of the Rules of Criminal Procedure,
program "Flash Report," together with its live broadcast.13 once a petition for review is filed with the Department of
Allegedly, GMA-7 did not receive any notice or was not Justice, a suspension of the criminal proceedings may be
aware that Reuters was airing footages of ABS-CBN.14 allowed by the court.
GMA-7’s news control room staff saw neither the "No
Access Philippines" notice nor a notice that the video feed Accordingly, to allow the Department of Justice the
was under embargo in favor of ABS-CBN.15 opportunity to act on said petition for review, let the
proceedings on this case be suspended for a period of
On August 13, 2004, ABS-CBN filed the Complaint for sixty (60) days counted from January 5, 2005, the date the
copyright infringement under Sections 17716 and 21117 of petition was filed with the Department of Justice. The
the Intellectual Property Code.18 arraignment of the accused on February 1, 2005 is
accordingly cancelled. Let the arraignment be
On December 3, 2004, Assistant City Prosecutor Dindo rescheduled to March 8, 2005 at 8:30 a.m. The accused
Venturanza issued the Resolution19 finding probable through counsel are notified in open court.
cause to indict Dela Peña-Reyes and Manalastas.20
Consequently, the Information21 for violation of the SO ORDERED.28
Intellectual Property Code was filed on December 17,
2004. It reads: On June 29, 2010, Department of Justice Acting Secretary
Alberto C. Agra (Secretary Agra) issued the Resolution
That on or about the 22nd of July 2004, in Quezon City, (Agra Resolution) that reversed the Gonzalez Resolution
Philippines, the above-named accused, conspiring and found probable cause to charge Dela Peña-Reyes
together, confederating with and mutually helping each and Manalastas for violation of the Intellectual Property
other, being the Head of News Operations and the Code.29 Secretary Agra also found probable cause to
Program Manager, respectively, for the News and Public indict Gozon, Duavit, Jr., Flores, and Soho for the same
Affairs Department of GMA Network, Inc., did then and violation.30 He ruled that:
there, willfully, unlawfully and feloniously use and
broadcast the footage of the arrival of Angelo [d]ela Cruz [w]hile good faith may be a defense in copyright
at the Ninoy Aquino International Airport of which ABS-CBN infringement, the same is a disputable presumption that
holds the exclusive ownership and copyright by then and must be proven in a full-blown trial. Disputable
there using, airing, and broadcasting the said footage in presumptions may be contradicted and overcome by
its news program "FLASH REPORT" without first obtaining the other evidence. Thus, a full-blown trial is the proper venue
consent or authority of said copyright owner, to their where facts, issues and laws are evaluated and
damage and prejudice. considered. The very purpose of trial is to allow a party to
present evidence to overcome the disputable
Contrary to law.22 presumptions involved.31

On January 4, 2005, respondents filed the Petition for The dispositive portion of the Agra Resolution provides:
Review before the Department of Justice.23 In the
Resolution (Gonzalez Resolution) dated August 1, 2005, WHEREFORE, premises considered:
Department of Justice Secretary Raul M. Gonzalez
(Secretary Gonzalez) ruled in favor of respondents and

4
(a) The Motion for Reconsideration filed by appellees ABS- 185. With the aforesaid statutory limitations on one’s
CBN Broadcasting Corporation (ABS-CBN) of our economic and copyrights and the allowable instances
Resolution promulgated on August 1, 2005 (Resolution No. where the other persons can legally use a copyrighted
364, Series of 2005) and the Petition for Review filed by work, criminal culpability clearly attaches only when the
complainant-appellant ABS-CBN in I.S. No. 04-10458 on infringement had been knowingly and intentionally
April10, 2006, are GRANTED and the City Prosecutor of committed.35 (Emphasis supplied)
Quezon City is hereby ordered to file the necessary
Information for violation of Section 177 and 211 of Republic The dispositive portion of the Decision reads:
Act No. 8293 against GMA-7. Felipe L. Gozon, Gilberto R.
Duavit, Jr., Marissa L.Flores, Jessica A. Soho, Grace Dela WHEREFORE, the foregoing considered, the instant petition
Pena-Reyes, John Oliver T. Manalastas[.] is hereby GRANTED and the assailed Resolution dated 29
June 2010 REVERSED and SET ASIDE. Accordingly, the
.... earlier Resolution dated 1 August 2005, which ordered the
withdrawal of the Information filed, if any, against the
SO ORDERED.32 (Emphasis in the original) petitioners for violation of Sections 177 and 211 of the
Intellectual Property Code, is hereby REINSTATED. No costs.
Respondents assailed the Agra Resolution through the
Petition for Certiorari with prayer for issuance of a SO ORDERED.36 (Emphasis in the original)
temporary restraining order and/or Writ of Preliminary
Injunction on September 2, 2010 before the Court of ABS-CBN’s Motion for Reconsideration was denied.37 It
Appeals. In the Resolution dated September 13, 2010, the then filed its Petition for Review before this court assailing
Court of Appeals granted the temporary restraining order the Decision and Resolution of the Court of Appeals.38
preventing the Department of Justice from enforcing the
Agra Resolution.33 The issues for this court’s consideration are:

On November 9, 2010, the Court of Appeals rendered the First, whether Secretary Agra committed errors of
Decision granting the Petition and reversing and setting jurisdiction in the Resolution dated June 29, 2010 and,
aside the Agra Resolution.34 The Court of Appeals held therefore, whether a petition for certiorari was the proper
that Secretary Agra committed errors of jurisdiction in remedy in assailing that Resolution;
issuing the assailed Resolution. Resolving the issue of
copyright infringement, the Court of Appeals said: Second, whether news footage is copyrightable under the
law;
Surely, private respondent has a copyright of its news
coverage. Seemingly, for airing said video feed, petitioner Third, whether there was fair use of the broadcast material;
GMA is liable under the provisions of the Intellectual
Property Code, which was enacted purposely to protect Fourth, whether lack of knowledge that a material is
copyright owners from infringement. However, it is an copyrighted is a defense against copyright infringement;
admitted fact that petitioner GMA had only aired a five
(5) second footage of the disputed live video feed that it Fifth, whether good faith is a defense in a criminal
had received from Reuters and CNN as a subscriber. prosecution for violation of the Intellectual Property Code;
Indeed, petitioners had no notice of the right of ownership and
of private respondent over the same. Without notice of the
"No Access Philippines" restriction of the live video feed, Lastly, whether the Court of Appeals was correct in
petitioner cannot be faulted for airing a live video feed overturning Secretary Agra’s finding of probable cause.
from Reuters and CNN.
I
Verily, as aptly opined by Secretary Gonzalez in his earlier
Resolution, the act of petitioners in airing the five (5) The trial court granted respondents’ Motion to Suspend
second footage was undeniably attended by good faith Proceedings and deferred respondents Dela Peña-Reyes
and it thus serves to exculpate them from criminal liability and Manalastas’ arraignment for 60 days in view of the
under the Code. While the Intellectual Property Code is a Petition for Review filed before the Department of Justice.
special law, and thus generally categorized as malum
prohibitum, it bears to stress that the provisions of the Code Rule 116, Section 11 (c) of the Rules of Criminal Procedure
itself do not ipso facto penalize a person or entity for allows
copyright infringement by the mere fact that one had
used a copyrighted work or material. the suspension of the accused’s arraignment in certain
circumstances only:
Certainly so, in the exercise of one’s moral and economic
or copyrights, the very provisions of Part IV of the SEC. 11. Suspension of arraignment.–Upon motion by the
Intellectual Property Code provide for the scope and proper party, the arraignment shall be suspended in the
limitations on copyright protection under Section 184 and following cases:
in fact permit fair use of copyrighted work under Section

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(a) The accused appears to be suffering from an unsound exercise of its discretion may grant the motion or deny it
mental condition which effectively renders him unable to and require that the trial on the merits proceed for the
fully understand the charge against him and to plead proper determination of the case.
intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for However, one may ask, if the trial court refuses to grant the
such purpose; motion to dismiss filed by the fiscal upon the directive of
the Secretary of Justice will there not be a vacuum in the
(b) There exists a prejudicial question; and prosecution? A state prosecutor to handle the case
cannot possibly be designated by the Secretary of Justice
(c) A petition for review of the resolution of the prosecutor who does not believe that there is a basis for prosecution
is pending at either the Department of Justice, or the nor can the fiscal be expected to handle the prosecution
Office of the President; provided, that the period of of the case thereby defying the superior order of the
suspension shall not exceed sixty (60) days counted from Secretary of Justice. The answer is simple. The role of the
the filing of the petition with the reviewing office. (12a) fiscal or prosecutor as We all know is to see that justice is
(Emphasis supplied) done and not necessarily to secure the conviction of the
person accused before the Courts. Thus, in spite of his
In Samson v. Daway,39 this court acknowledged the opinion to the contrary, it is the duty of the fiscal to
applicability of Rule 116, Section (c) in a criminal proceed with the presentation of evidence of the
prosecution for infringement under the Intellectual prosecution to the Court to enable the Court to arrive at
Property Code. However, this court emphasized the limits its own independent judgment as to whether the accused
of the order of deferment under the Rule: should be convicted or acquitted. The fiscal should not
shirk from the responsibility of appearing for the People of
While the pendency of a petition for review is a ground for the Philippines even under such circumstances much less
suspension of the arraignment, the . . . provision limits the should he abandon the prosecution of the case leaving it
deferment of the arraignment to a period of 60 days to the hands of a private prosecutor for then the entire
reckoned from the filing of the petition with the reviewing proceedings will be null and void. The least that the fiscal
office. It follows, therefore, that after the expiration of said should do is to continue to appear for the prosecution
period, the trial court is bound to arraign the accused or although he may turn over the presentation of the
to deny the motion to defer arraignment.40 evidence to the private prosecutor but still under his
direction and control.
We clarify that the suspension of the arraignment should
always be within the limits allowed by law. In Crespo v. The rule therefore in this jurisdiction is that once a
Judge Mogul,41 this court outlined the effects of filing an complaint or information is filed in Court any disposition of
information before the trial court, which includes initiating the case as to its dismissal or the conviction or acquittal of
a criminal action and giving this court "authority to hear the accused rests in the sound discretion of the Court.
and determine the case":42 Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is
The preliminary investigation conducted by the fiscal for already in Court he cannot impose his opinion on the trial
the purpose of determining whether a prima facie case court. The Court is the best and sole judge on what to do
exists warranting the prosecution of the accused is with the case before it. The determination of the case is
terminated upon the filing of the information in the proper within its exclusive jurisdiction and competence. A motion
court. In turn, as above stated, the filing of said information to dismiss the case filed by the fiscal should be addressed
sets in motion the criminal action against the accused in to the Court who has the option to grant or deny the same.
Court. Should the fiscal find it proper to conduct a It does not matter if this is done before or after the
reinvestigation of the case, at such stage, the permission arraignment of the accused or that the motion was filed
of the Court must be secured. After such reinvestigation after a reinvestigation or upon instructions of the Secretary
the finding and recommendations of the fiscal should be of Justice who reviewed the records of the investigation.43
submitted to the Court for appropriate action. While it is (Emphasis supplied, citations omitted)
true that the fiscal has the quasi judicial discretion to
determine whether or not a criminal case should be filed The doctrine in Crespo was reiterated in Mayor Balindong
in court or not, once the case had already been brought v. Court of Appeals,44 where this court reminded the
to Court whatever disposition the fiscal may feel should be Department of Justice Secretary to refrain from
proper in the case thereafter should be addressed for the entertaining petitions for review when the case is already
consideration of the Court, the only qualification is that the pending with this court:
action of the Court must not impair the substantial rights of
the accused or the right of the People to due process of [I]n order to avoid a situation where the opinion of the
law. Secretary of Justice who reviewed the action of the fiscal
may be disregarded by the trial court, the Secretary of
Whether the accused had been arraigned or not and Justice should, as far as practicable, refrain from
whether it was due to a reinvestigation by the fiscal or a entertaining a petition for review or appeal from the
review by the Secretary of Justice whereby a motion to action of the fiscal, when the complaint or information has
dismiss was submitted to the Court, the Court in the

6
already been filed in the Court. The matter should be left exception, however, judicial review is allowed where
entirely for the determination of the Court.45 respondent has clearly established that the prosecutor
committed grave abuse of discretion. Otherwise stated,
The trial court should have proceeded with respondents such review is appropriate only when the prosecutor has
Dela Peña-Reyes and Manalastas’ arraignment after the exercised his discretion in an arbitrary, capricious,
60-day period from the filing of the Petition for Review whimsical or despotic manner by reason of passion or
before the Department of Justice on March 8, 2005. It was personal hostility, patent and gross enough to amount to
only on September 13, 2010 that the temporary restraining an evasion of a positive duty or virtual refusal to perform a
order was issued by the Court of Appeals. The trial court duty enjoined by law.52 (Citations omitted)
erred when it did not act on the criminal case during the
interim period. It had full control and direction of the case. Grave abuse of discretion refers to:
As Judge Mogul reasoned in denying the motion to dismiss
in Crespo, failure to proceed with the arraignment such capricious and whimsical exercise of judgment as is
"disregards the requirements of due process [and] erodes equivalent to lack of jurisdiction. The abuse of discretion
the Court’s independence and integrity."46 must be grave as where the power is exercised in an
arbitrary or despotic manner by reason of passion or
II personal hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal
According to ABS-CBN, the Court of Appeals erred in to perform the duty enjoined by or to act at all in
finding that: a motion for reconsideration was not contemplation of law.53
necessary before a petition for certiorari could be filed; the
Department of Justice Secretary committed errors of Resorting to certiorari requires that there be there be "no
jurisdiction since the Agra Resolution was issued within its appeal, or any plain, speedy, and adequate remedy in
authority and in accordance with settled laws and the ordinary course of law[,]"54 such as a motion for
jurisprudence; and respondents were not liable for reconsideration. Generally, "a motion for reconsideration is
copyright infringement. a condition sine qua non before a petition for certiorari
may lie, its purpose being to grant an opportunity for the
In its assailed Decision, the Court of Appeals found that [tribunal or officer] to correct any error attributed to it by a
respondents committed a procedural error when they re-examination of the legal and factual circumstances of
failed to file a motion for reconsideration before filing the the case."55 However, exceptions to the rule exist:
Petition for Certiorari. However, the Court of Appeals held
that a motion for reconsideration was unnecessary since (a) where the order is a patent nullity, as where the Court
the Agra Resolution was a patent nullity and it would have a quo had no jurisdiction; (b) where the questions raised in
been useless under the circumstances: Given that a the certiorari proceeding have been duly raised and
reading of the assailed Resolution and the instant records passed upon by the lower court, or are the same as those
readily reveals errors of jurisdiction on the part of raised and passed upon in the lower court; (c) where there
respondent Secretary, direct judicial recourse is warranted is an urgent necessity for the resolution of the question and
under the circumstances. Aside from the fact that said any further delay would prejudice the interests of the
Resolution is a patent nullity having been issued in grave Government or of the petitioner or the subject matter of
abuse of discretion amounting to lack or excess of the action is perishable; (d) where, under the
jurisdiction, the filing of a motion for reconsideration is circumstances, a motion for reconsideration would be
evidently useless on account of the fact that the issues and useless; (e) where petitioner was deprived of due process
arguments before this Court have already been duly and there is extreme urgency for relief; (f) where, in a
raised and accordingly delved into by respondent criminal case, relief from an order of arrest is urgent and
Secretary in his disposition of the petition a quo.47 the granting of such relief by the trial Court is improbable;
(Emphasis in the original) (g) where the proceedings in the lower court are a nullity
for lack of due process; (h) where the proceedings was ex
In Elma v. Jacobi,48 this court ruled that a petition for parte or in which the petitioner had no opportunity to
certiorari under Rule 65 of the Rules of Court is proper when object; and (i) where the issue raised is one purely of law
assailing adverse resolutions of the Department of Justice or where public interest is involved.56 (Emphasis in the
stemming from the determination of probable cause.49 original, citations omitted)
However, grave abuse of discretion must be alleged.50
As argued by respondents, "[a] second motion for
In Sanrio Company Limited v. Lim,51 this court stressed the reconsideration would have been useless and futile since
prosecutor’s role in determining probable cause. Judicial the D[epartment] [of] J[ustice] had already passed upon
review will only lie when it is shown that the prosecutor the same issues twice."57 Equally pressing under the
acted with grave abuse of discretion amounting to lack or circumstances was the need to resolve the matter, as the
excess of jurisdiction: Information’s filing would lead to respondents’ imminent
arrest.58
A prosecutor alone determines the sufficiency of evidence
that will establish probable cause justifying the filing of a Moreover, Department of Justice Department Circular No.
criminal information against the respondent. By way of 70 dated July 3, 2000, or the 2000 NPS Rules on Appeal,

7
provides that no second motion for reconsideration of the This court has adopted a deferential attitude towards
Department of Justice Secretary’s resolution shall be review of the executive’s finding of probable cause.63 This
entertained: is based "not only upon the respect for the investigatory
and [prosecutorial] powers granted by the Constitution to
SECTION 13. Motion for reconsideration. The aggrieved the executive department but upon practicality as well."64
party may file a motion for reconsideration within a non- Review of the Department of Justice Secretary’s decision
extendible period of ten (10) days from receipt of the or resolution will be allowed only when grave abuse of
resolution on appeal, furnishing the adverse party and the discretion is alleged:
Prosecution Office concerned with copies thereof and
submitting proof of such service. No second or further The full discretionary authority to determine probable
motion for reconsideration shall be entertained. cause in a preliminary investigation to ascertain sufficient
ground for the filing of information rests with the executive
The Agra Resolution was the result of respondents’ Motion branch. Hence, judicial review of the resolution of the
for Reconsideration assailing the Gonzalez Resolution. To Secretary of Justice is limited to a determination whether
file a motion for reconsideration of the Agra Resolution there has been a grave abuse of discretion amounting to
would be superfluous. Respondents were, therefore, lack or excess of jurisdiction. Courts cannot substitute the
correct in filing the Petition for Certiorari of the Agra executive branch’s judgment.
Resolution before the Court of Appeals.
....
III
It is only where the decision of the Justice Secretary is
The Court of Appeals ruled that Secretary Agra committed tainted with grave abuse of discretion amounting to lack
errors of jurisdiction, which then required the grant of the or excess of jurisdiction that the Court of Appeals may take
writ of certiorari: cognizance of the case in a petition for certiorari under
Rule 65 of the Revised Rules of Civil Procedure. The Court
So viewed, by ordering the filing of information without of Appeals decision may then be appealed to this Court
proof that probable cause exists to charge petitioners with by way of a petition for review on certiorari.65 (Emphasis
a crime, respondent Secretary clearly committed an error supplied, citations omitted)
of jurisdiction thus warranting the issuance of the writ of
certiorari. Surely, probable cause cannot be had when the In this case, it must be shown that Secretary Agra
very provisions of the statute exculpates criminal liability in exceeded his authority when he reversed the findings of
cases classified as fair use of copyrighted materials. The Secretary Gonzalez. This court must determine whether
fact that they admittedly used the Reuters live video feed there is probable cause to file an information for copyright
is not, as a matter of course, tantamount to copyright infringement under the Intellectual Property Code.
infringement that would justify the filing of an information
against the petitioners.59 IV

Error of jurisdiction must be distinguished from error of Probable cause pertains to "such facts as are sufficient to
judgment: engender a well-founded belief that a crime has been
committed and that respondent is probably guilty
A line must be drawn between errors of judgment and thereof."66 Preliminary investigation is the inquiry or
errors of jurisdiction. An error of judgment is one which the proceeding to determine whether there is probable
court may commit in the exercise of its jurisdiction. An error cause.67
of jurisdiction renders an order or judgment void or
voidable. Errors of jurisdiction are reviewable on certiorari; In Webb v. De Leon,68 this court ruled that determination
errors of judgment, only by appeal.60 of probable cause during preliminary investigation does
not require trial-like evaluation of evidence since existence
In People v. Hon. Sandiganbayan61: of probable cause does not equate to guilt:

An error of judgment is one which the court may commit It ought to be emphasized that in determining probable
in the exercise of its jurisdiction. An error of jurisdictionis one cause, the average man weighs facts and circumstances
where the act complained of was issued by the court without resorting to the calibrations of our technical rules
without or in excess of jurisdiction, or with grave abuse of of evidence of which his knowledge is nil. Rather, he relies
discretion, which is tantamount to lack or in excess of on the calculus of common sense of which all reasonable
jurisdiction and which error is correctible only by the men have an abundance.
extraordinary writ of certiorari. Certiorari will not be issued
to cure errors of the trial court in its appreciation of the ....
evidence of the parties, or its conclusions anchored on the
said findings and its conclusions of law.62 (Emphasis . . . A finding of probable cause merely binds over the
supplied) suspect to stand trial. It is not a pronouncement of guilt.69

8
In Reyes v. Pearlbank Securities, Inc.,70 finding probable give fair leeway for enforcing the law in the community’s
cause is not equivalent to finding with moral certainty that protection. Because many situations which confront
the accused committed the crime: officers in the course of executing their duties are more or
less ambiguous, room must be allowed for some mistakes
A finding of probable cause needs only to rest on on their part. But the mistakes must be those of reasonable
evidence showing that more likely than not a crime has men, acting on facts leading sensibly to their conclusions
been committed by the suspects. It need not be based on of probability. The rule of probable cause is a practical,
clear and convincing evidence of guilt, not on evidence non technical conception affording the best compromise
establishing guilt beyond reasonable doubt, and definitely that has been found for accommodating these often
not on evidence establishing absolute certainty of guilt. In opposing interests. Requiring more would unduly hamper
determining probable cause, the average man weighs law enforcement. To allow less would be to leave law-
facts and circumstances without resorting to the abiding citizens at the mercy of the officers’ whim or
calibrations of the rules of evidence of which he has no caprice.
technical knowledge. He relies on common sense.71
In the Philippines, there are four instances in the Revised
During preliminary investigation, a public prosecutor does Rules of Criminal Procedure where probable cause is
not adjudicate on the parties’ rights, obligations, or needed to be established:
liabilities.72
(1) In Sections 1 and 3 of Rule 112: By the investigating
In the recent case of Estrada v. Office of the Ombudsman, officer, to determine whether there is sufficient ground to
et al.,73 we reiterated Webb on the determination of engender a well-founded belief that a crime has been
probable cause during preliminary investigation and committed and the respondent is probably guilty thereof,
traced the history of probable cause as borrowed from and should be held for trial. A preliminary investigation is
American jurisprudence: required before the filing of a complaint or information for
an offense where the penalty prescribed by law is at least
The purpose in determining probable cause is to make sure four years, two months and one day without regard to the
that the courts are not clogged with weak cases that will fine;
only be dismissed, as well as to spare a person from the
travails of a needless prosecution. (2) In Sections 6 and 9 of Rule 112: By the judge, to
determine whether a warrant of arrest or a commitment
.... order, if the accused has already been arrested, shall be
issued and that there is a necessity of placing the
. . . In the United States, from where we borrowed the respondent under immediate custody in order not to
concept of probable cause, the prevailing definition of frustrate the ends of justice;
probable cause is this:
(3) In Section 5(b) of Rule 113:By a peace officer or a
In dealing with probable cause, however, as the very private person making a warrantless arrest when an
name implies, we deal with probabilities. These are not offense has just been committed, and he has probable
technical; they are the factual and practical cause to believe based on personal knowledge of facts or
considerations of everyday life on which reasonable and circumstances that the person to be arrested has
prudent men, not legal technicians, act. The standard of committed it; and
proof is accordingly correlative to what must be proved.
(4) In Section 4 of Rule 126: By the judge, to determine
"The substance of all the definitions" of probable cause "is whether a search warrant shall be issued, and only upon
a reasonable ground for belief of guilt." McCarthy v. De probable cause in connection with one specific offense to
Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll be determined personally by the judge after examination
opinion. 267 U. S. at 161. And this "means less than under oath or affirmation of the complainant and the
evidence which would justify condemnation" or witnesses he may produce, and particularly describing the
conviction, as Marshall, C. J., said for the Court more than place to be searched and the things to be seized which
a century ago in Locke v. United States, 7 Cranch 339, 348. may be anywhere in the Philippines.
Since Marshall’s time, at any rate, it has come to mean
more than bare suspicion: Probable cause exists where In all these instances, the evidence necessary to establish
"the facts and circumstances within their [the officers’] probable cause is based only on the likelihood, or
knowledge and of which they had reasonably trustworthy probability, of guilt.74
information [are] sufficient in themselves to warrant a man
of reasonable caution in the belief that" an offense has Estrada also highlighted that a "[p]reliminary investigation
been or is being committed. Carroll v. United States, 267 U. is not part of the criminal action. It is merely preparatory
S. 132, 162. and may even be disposed of in certain situations."75

These long-prevailing standards seek to safeguard citizens To determine whether there is probable cause that
from rash and unreasonable interferences with privacy respondents committed copyright infringement, a review
and from unfounded charges of crime. They also seek to

9
of the elements of the crime, including the existing facts, is day, particularly when it underwent a creative process, is
required. not entitled to protection.

V An idea or event must be distinguished from the expression


of that idea or event. An idea has been likened to a ghost
ABS-CBN claims that news footage is subject to copyright in that it "must be spoken to a little before it will explain
and prohibited use of copyrighted material is punishable itself."84 It is a concept that has eluded exact legal
under the Intellectual Property Code. It argues that the definition.85 To get a better grasp of the idea/expression
new footage is not a "newsworthy event" but "merely an dichotomy, the etymology of the term "idea" is traced:
account of the arrival of Angelo dela Cruz in the
Philippines — the latter being the newsworthy event":76 The word "idea" is derived from a Greek term, meaning "a
form, the look or appearance of a thing as opposed to its
To be clear, it is the event itself or the arrival of Angelo dela reality, from idein, to see." In the Timaeus, Plato saw ideas
Cruz which is not copyrightable because that is the as eternal paradigms, independent objects to which the
newsworthy event. However, any footage created from divine demiurge looks as patterns in forming the world. This
the event itself, in this case the arrival of Angelo dela Cruz, was later modified to the religious conception of ideas as
are intellectual creations which are copyrightable. Thus, the thoughts of God. "It is not a very long step to extend
the footage created by ABS-CBN during the arrival of the term ‘idea’ to cover patterns, blueprints, or plans in
Angelo dela Cruz, which includes the statements of Dindo anyone's mind, not only in God’s." The word entered the
Amparo, are copyrightable and protected by the laws on French and English vernacular in the 1600s and possessed
copyright.77 two meanings. The first was the Platonic meaning of a
perfect exemplar or paradigm. The second, which
On the other hand, respondents argue that ABS-CBN’s probably has its origin with Descartes, is of a mental
news footage of Angelo dela Cruz’s arrival is not concept or image or, more broadly, any object of the
copyrightable or subject to protection: mind when it is active. Objects of thought may exist
independently. The sun exists (probably) before and after
Certainly, the arrival of Angelo [d]ela Cruz, which aroused you think of it. But it is also possible to think of things that
public attention and the consciousness of the Filipino have never existed, such as a unicorn or Pegasus. John
people with regard to their countrymen, OFWs working in Locke defined ideas very comprehensively, to include: all
foreign countries and how the Philippine government objects of the mind. Language was a way of translating
responds to the issues concerning them, is "news". There is the invisible, hidden ideas that make up a person’s
no ingenuity or inventiveness added in the said news thoughts into the external, perceptible world of articulate
footage. The video footage of this "news" is not sounds and visible written symbols that others can
copyrightable by any legal standard as facts of everyday understand.86 (Citations omitted) There is no one legal
life depicted in the news and items of press information is definition of "idea" in this jurisdiction. The term "idea" is
part of the public domain.78 (Emphasis in the original) mentioned only once in the Intellectual Property Code.87
In Joaquin, Jr. v. Drilon,88 a television format (i.e., a dating
The news footage is copyrightable. show format) is not copyrightable under Section 2 of
Presidential Decree No. 49;89 it is a mere concept:
The Intellectual Property Code is clear about the rights
afforded to authors of various kinds of work. Under the P.D. No. 49, §2, in enumerating what are subject to
Code, "works are protected by the sole fact of their copyright, refers to finished works and not to concepts. The
creation, irrespective of their mode or form of expression, copyright does not extend to an idea, procedure, process,
as well as of their content, quality and purpose."79 These system, method of operation, concept, principle, or
include "[a]udiovisual works and cinematographic works discovery, regardless of the form in which it is described,
and works produced by a process analogous to explained, illustrated, or embodied in such work. Thus, the
cinematography or any process for making audiovisual new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
recordings."80 provides:

Contrary to the old copyright law,81 the Intellectual SEC. 175. Unprotected Subject Matter.—Notwithstanding
Property Code does not require registration of the work to the provisions of Sections 172 and 173, no protection shall
fully recover in an infringement suit. Nevertheless, both extend, under this law, to any idea, procedure, system,
copyright laws provide that copyright for a work is method or operation, concept, principle, discovery or
acquired by an intellectual creator from the moment of mere data as such, even if they are expressed, explained,
creation.82 illustrated or embodied in a work; news of the day and
other miscellaneous facts having the character of mere
It is true that under Section 175 of the Intellectual Property items of press information; or any official text of a
Code, "news of the day and other miscellaneous facts legislative, administrative or legal nature, as well as any
having the character of mere items of press information" official translation thereof.
are considered unprotected subject matter.83 However,
the Code does not state that expression of the news of the What then is the subject matter of petitioners’ copyright?
This Court is of the opinion that petitioner BJPI’s copyright

10
covers audio-visual recordings of each episode of Rhoda illustrated how an idea or concept is different from the
and Me, as falling within the class of works mentioned in expression of that idea:
P.D. 49, §2(M),to wit:
In the oft-cited case of Baker vs. Selden, the United States
Cinematographic works and works produced by a process Supreme Court held that only the expression of an idea is
analogous to cinematography or any process for making protected by copyright, not the idea itself. In that case,
audio-visual recordings; the plaintiff held the copyright of a book which
expounded on a new accounting system he had
The copyright does not extend to the general concept or developed. The publication illustrated blank forms of
format of its dating game show. Accordingly, by the very ledgers utilized in such a system. The defendant
nature of the subject of petitioner BJPI’s copyright, the reproduced forms similar to those illustrated in the plaintiff’s
investigating prosecutor should have the opportunity to copyrighted book. The US Supreme Court ruled that:
compare the videotapes of the two shows.
"There is no doubt that a work on the subject of book-
Mere description by words of the general format of the two keeping, though only explanatory of well known systems,
dating game shows is insufficient; the presentation of the may be the subject of a copyright; but, then, it is claimed
master videotape in evidence was indispensable to the only as a book. x x x But there is a clear distinction between
determination of the existence of probable cause. As the books, as such, and the art, which it is, intended to
aptly observed by respondent Secretary of Justice: illustrate. The mere statement of the proposition is so
evident that it requires hardly any argument to support it.
A television show includes more than mere words can The same distinction may be predicated of every other art
describe because it involves a whole spectrum of visuals as well as that of bookkeeping.
and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the A treatise on the composition and use of medicines, be
general copyright/format of both dating game shows.90 they old or new; on the construction and use of ploughs or
(Emphasis supplied, citations omitted) watches or churns; or on the mixture and application of
colors for painting or dyeing; or on the mode of drawing
Ideas can be either abstract or concrete.91 It is the lines to produce the effect of perspective, would be the
concrete ideas that are generally referred to as subject of copyright; but no one would contend that the
expression: copyright of the treatise would give the exclusive right to
the art or manufacture described therein. The copyright of
The words "abstract" and "concrete" arise in many cases the book, if not pirated from other works, would be valid
dealing with the idea/expression distinction. The Nichols without regard to the novelty or want of novelty of its
court, for example, found that the defendant’s film did not subject matter. The novelty of the art or thing described or
infringe the plaintiff’s play because it was "too generalized explained has nothing to do with the validity of the
an abstraction from what plaintiff wrote . . . only a part of copyright. To give to the author of the book an exclusive
her ideas." In Eichel v. Marcin, the court said that authors property in the art described therein, when no
may exploit facts, experiences, field of thought, and examination of its novelty has ever been officially made,
general ideas found in another’s work, "provided they do would be a surprise and a fraud upon the public. That is
not substantially copy a concrete form, in which the the province of letters patent, not of copyright. The claim
circumstances and ideas have been developed, to an invention of discovery of an art or manufacture must
arranged, and put into shape." Judge Hand, in National be subjected to the examination of the Patent Office
Comics Publications, Inc. v. Fawcett Publications, Inc. said before an exclusive right therein can be obtained; and a
that "no one infringes, unless he descends so far into what patent from the government can only secure it.
is concrete as to invade. . . ‘expression.’"
The difference between the two things, letters patent and
These cases seem to be distinguishing "abstract" ideas from copyright, may be illustrated by reference to the subjects
"concrete" tangible embodiments of these abstractions just enumerated. Take the case of medicines. Certain
that may be termed expression. However, if the concrete mixtures are found to be of great value in the healing art.
form of a work means more than the literal expression If the discoverer writes and publishes a book on the subject
contained within it, it is difficult to determine what is meant (as regular physicians generally do), he gains no exclusive
by "concrete." Webster's New Twentieth Century right to the manufacture and sale of the medicine; he
Dictionary of the English Language provides several gives that to the public. If he desires to acquire such
meanings for the word concrete. These include: "having a exclusive right, he must obtain a patent for the mixture as
material, perceptible existence; of, belonging to, or a new art, manufacture or composition of matter. He may
characterized by things or events that can be perceived copyright his book, if he pleases; but that only secures to
by the senses; real; actual;" and "referring to a particular; him the exclusive right of printing and publishing his book.
specific, not general or abstract."92 So of all other inventions or discoveries.

In Pearl & Dean (Phil.), Incorporated v. Shoemart, The copyright of a book on perspective, no matter how
Incorporated,93 this court, citing the American case of many drawings and illustrations it may contain, gives no
Baker v. Selden, distinguished copyright from patents and exclusive right to the modes of drawing described, though

11
they may never have been known or used before. By substance of the information contained in the reports.
publishing the book without getting a patent for the art, Wainwright, 558 F.2d at 95; International News Service v.
the latter is given to the public. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211
(1918); see Chicago Record-Herald Co. v. Tribune Assn.,
.... 275 F. 797 (7th Cir.1921); 1 Nimmer on Copyright § 2.11[B]
(1983). Copyright protects the manner of expression of
Now, whilst no one has a right to print or publish his book, news reports, "the particular form or collocation of words
or any material part thereof, as a book intended to convey in which the writer has communicated it." International
instruction in the art, any person may practice and use the News Service, 248 U.S. at 234, 39 S.Ct. at 70. Such
art itself which he has described and illustrated therein. The protection extends to electronic news reports as well as
use of the art is a totally different thing from a publication written reports. See17 U.S.C. § 102(a) (5), (6), and (7); see
of the book explaining it. The copyright of a book on also Iowa State University Research Foundations, Inc. v.
bookkeeping cannot secure the exclusive right to make, American Broadcasting Cos., 621 F.2d 57, 61 (2d Cir.
sell and use account books prepared upon the plan set 1980).99 (Emphasis supplied)
forth in such book. Whether the art might or might not have
been patented, is a question, which is not before us. It was The idea/expression dichotomy has long been subject to
not patented, and is open and free to the use of the debate in the field of copyright law. Abolishing the
public. And, of course, in using the art, the ruled lines and dichotomy has been proposed, in that non-protectibility of
headings of accounts must necessarily be used as incident ideas should be re-examined, if not stricken, from decisions
to it. and the law:

The plausibility of the claim put forward by the If the underlying purpose of the copyright law is the dual
complainant in this case arises from a confusion of ideas one expressed by Lord Mansfield, the only excuse for the
produced by the peculiar nature of the art described in continuance of the idea-expression test as a judicial
the books, which have been made the subject of standard for determining protectibility would be that it was
copyright. In describing the art, the illustrations and or could be a truly useful method of determining the
diagrams employed happened to correspond more proper balance between the creator’s right to profit from
closely than usual with the actual work performed by the his work and the public's right that the "progress of the arts
operator who uses the art. x x x The description of the art in not be retarded."
a book, though entitled to the benefit of copyright, lays no
foundation for an exclusive claim to the art itself. The . . . [A]s used in the present-day context[,] the dichotomy
object of the one is explanation; the object of the other is has little or no relationship to the policy which it should
use. The former may be secured by copyright. The latter effectuate. Indeed, all too often the sweeping language
can only be secured, if it can be secured at all, by letters of the courts regarding the non-protectibility of ideas gives
patent."94 (Emphasis supplied) the impression that this is of itself a policy of the law, instead
of merely a clumsy and outdated tool to achieve a much
News or the event itself is not copyrightable. However, an more basic end.100
event can be captured and presented in a specific
medium. As recognized by this court in Joaquin, television The idea/expression dichotomy is a complex matter if one
"involves a whole spectrum of visuals and effects, video is trying to determine whether a certain material is a copy
and audio."95 News coverage in television involves of another.101 This dichotomy would be more relevant in
framing shots, using images, graphics, and sound determining, for instance, whether a stage play was an
effects.96 It involves creative process and originality. infringement of an author’s book involving the same
Television news footage is an expression of the news. characters and setting. In this case, however, respondents
admitted that the material under review — which is the
In the United States, a line of cases dwelt on the possibility subject of the controversy — is an exact copy of the
of television newscasts to be copyrighted.97 Most of these original. Respondents did not subject ABS-CBN’s footage
cases focused on private individuals’ sale or resale of to any editing of their own. The news footage did not
tapes of news broadcasts. Conflicting decisions were undergo any transformation where there is a need to track
rendered by its courts. Noteworthy, however, is the District elements of the original.
Court’s pronouncement in Pacific & Southern Co. v.
Duncan,98 which involves a News Monitoring Service’s Having established the protectible nature of news
videotaping and sale of WXIA-TV’s news broadcasts: footage, we now discuss the concomitant rights accorded
to authors. The authors of a work are granted several rights
It is axiomatic that copyright protection does not extend in relation to it, including copyright or economic rights:
to news "events" or the facts or ideas which are the subject
of news reports. Miller v. Universal City Studios, Inc., 650 F.2d SECTION 177. Copyright or Economic Rights. — Subject to
1365, 1368 (5th Cir. 1981); Wainwright Securities, Inc. v. Wall the provisions of Chapter VIII, copyright or economic rights
Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert. shall consist of the exclusive right to carry out, authorize or
denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). prevent the following acts:
But it is equally well-settled that copyright protection does
extend to the reports themselves, as distinguished from the

12
177.1. Reproduction of the work or substantial portion of
the work; The Code defines what broadcasting is and who
broadcasting organizations include:
177.2. Dramatization, translation, adaptation, abridgment,
arrangement or other transformation of the work; 202.7. "Broadcasting" means the transmission by wireless
means for the public reception of sounds or of images or
177.3. The first public distribution of the original and each of representations thereof; such transmission by satellite is
copy of the work by sale or other forms of transfer of also "broadcasting" where the means for decrypting are
ownership; provided to the public by the broadcasting organization
or with its consent;
177.4. Rental of the original or a copy of an audiovisual or
cinematographic work, a work embodied in a sound 202.8. "Broadcasting organization" shall include a natural
recording, a computer program, a compilation of data person or a juridical entity duly authorized to engage in
and other materials or a musical work in graphic form, broadcasting[.]
irrespective of the ownership of the original or the copy
which is the subject of the rental; (n) Developments in technology, including the process of
preserving once ephemeral works and disseminating
177.5. Public display of the original or a copy of the work; them, resulted in the need to provide a new kind of
protection as distinguished from copyright.102 The
177.6. Public performance of the work; and designation "neighboring rights" was abbreviated from the
phrase "rights neighboring to copyright."103 Neighboring
177.7. Other communication to the public of the or related rights are of equal importance with copyright as
work.(Sec. 5, P. D. No. 49a) (Emphasis supplied) established in the different conventions covering both
kinds of rights.104
Under Section 211 of the Intellectual Property Code,
broadcasting organizations are granted a more specific Several treaties deal with neighboring or related rights of
set of rights called related or neighboring rights: copyright.105 The most prominent of these is the
"International Convention for the Protection of Performers,
SECTION 211. Scope of Right. — Subject to the provisions of Producers of Phonograms and Broadcasting
Section 212, broadcasting organizations shall enjoy the Organizations" (Rome Convention).106
exclusive right to carry out, authorize or prevent any of the
following acts: The Rome Convention protects the rights of broadcasting
organizations in relation to their broadcasts. Article XIII of
211.1. The rebroadcasting of their broadcasts; the Rome Convention enumerates the minimum rights
accorded to broadcasting organizations:
211.2. The recording in any manner, including the making
of films or the use of video tape, of their broadcasts for the Article 13
purpose of communication to the public of television
broadcasts of the same; and Minimum Rights for Broadcasting Organizations

211.3. The use of such records for fresh transmissions or for Broadcasting organisations shall enjoy the right to
fresh recording. (Sec. 52, P.D. No. 49) (Emphasis supplied) authorize or prohibit:

Section 212 of the Code provides: (a) the rebroadcasting of their broadcasts;

CHAPTER XV (b) the fixation of their broadcasts;


LIMITATIONS ON PROTECTION
(c) the reproduction:
Section 212. Limitations on Rights. - Sections 203, 208 and
209 shall not apply where the acts referred to in those (i) of fixations, made without their consent, of their
Sections are related to: broadcasts;

212.1. The use by a natural person exclusively for his own (ii) of fixations, made in accordance with the provisions of
personal purposes; Article 15, of their broadcasts, if the reproduction is made
for purposes different from those referred to in those
212.2. Using short excerpts for reporting current events; provisions;

212.3. Use solely for the purpose of teaching or for scientific (d) the communication to the public of their television
research; and broadcasts if such communication is made in places
accessible to the public against payment of an entrance
212.4. Fair use of the broadcast subject to the conditions fee; it shall be a matter for the domestic law of the State
under Section 185. (Sec. 44, P.D. No. 49a)

13
where protection of this right is claimed to determine the The evidence on record, as well as the discussions above,
conditions under which it may be exercised. show that the footage used by[respondents] could
hardlybe characterized as a short excerpt, as it was aired
With regard to the neighboring rights of a broadcasting over one and a half minutes.
organization in this jurisdiction, this court has discussed the
difference between broadcasting and rebroadcasting: Furthermore, the footage used does not fall under the
contemplation of Section 212.2 of the Intellectual Property
Section 202.7 of the IP Code defines broadcasting as "the Code. A plain reading of the provision would reveal that
transmission by wireless means for the public reception of copyrighted material referred to in Section 212 are short
sounds or of images or of representations thereof; such portions of an artist’s performance under Section 203, or a
transmission by satellite is also ‘broadcasting’ where the producer’s sound recordings under Sections 208 and 209.
means for decrypting are provided to the public by the Section 212 does not refer to actual use of video footage
broadcasting organization or with its consent." of another as its own.

On the other hand, rebroadcasting as defined in Article The Angelo dela Cruz footage does not fall under the rule
3(g) of the International Convention for the Protection of on Section 212.4 of the Intellectual Property Code on fair
Performers, Producers of Phonograms and Broadcasting use of the broadcast.
Organizations, otherwise known as the 1961 Rome
Convention, of which the Republic of the Philippines is a ....
signatory, is "the simultaneous broadcasting by one
broadcasting organization of the broadcast of another In determining fair use, several factors are considered,
broadcasting organization." including the nature of the copyrighted work, and the
amount and substantiality of the person used in relation to
.... the copyrighted work as a whole.

Under the Rome Convention, rebroadcasting is "the In the business of television news reporting, the nature of
simultaneous broadcasting by one broadcasting the copyrighted work or the video footages, are such that,
organization of the broadcast of another broadcasting footage created, must be a novelty to be a good report.
organization." The Working Paper prepared by the Thus, when the . . . Angelo dela Cruz footage was used by
Secretariat of the Standing Committee on Copyright and [respondents], the novelty of the footage was clearly
Related Rights defines broadcasting organizations as affected.
"entities that take the financial and editorial responsibility
for the selection and arrangement of, and investment in, Moreover, given that a substantial portion of the Angelo
the transmitted content."107 (Emphasis in the original, dela Cruz footage was utilized by GMA-7 for its own, its use
citations omitted) can hardly be classified as fair use.

Broadcasting organizations are entitled to several rights Hence, [respondents] could not be considered as having
and to the protection of these rights under the Intellectual used the Angelo dela Cruz [footage] following the
Property Code. Respondents’ argument that the subject provisions on fair use.
news footage is not copyrightable is erroneous. The Court
of Appeals, in its assailed Decision, correctly recognized It is also worthy to note that the Honorable Court of
the existence of ABS-CBN’s copyright over the news Appeals seem to contradict itself when it relied on the
footage: provisions of fair use in its assailed rulings considering that it
found that the Angelo dela Cruz footage is not
Surely, private respondent has a copyright of its news copyrightable, given that the fair use presupposes an
coverage. Seemingly, for airing said video feed, petitioner existing copyright. Thus, it is apparent that the findings of
GMA is liable under the provisions of the Intellectual the Honorable Court of Appeals are erroneous and based
Property Code, which was enacted purposely to protect on wrong assumptions.109 (Underscoring in the original)
copyright owners from infringement.108
On the other hand, respondents counter that GMA-7’s use
News as expressed in a video footage is entitled to of ABS-CBN’s news footage falls under fair use as defined
copyright protection. Broadcasting organizations have not in the Intellectual Property Code. Respondents, citing the
only copyright on but also neighboring rights over their Court of Appeals Decision, argue that a strong statutory
broadcasts. Copyrightability of a work is different from fair defense negates any finding of probable cause under the
use of a work for purposes of news reporting. same statute.110 The Intellectual Property Code provides
that fair use negates infringement.
VI
Respondents point out that upon seeing ABS-CBN’s
ABS-CBN assails the Court of Appeals’ ruling that the reporter Dindo Amparo on the footage, GMA-7
footage shown by GMA-7 falls under the scope of Section immediately shut off the broadcast. Only five (5) seconds
212.2 and 212.4 of the Intellectual Property Code: passed before the footage was cut. They argue that this
shows that GMA-7 had no prior knowledge of ABS-CBN’s

14
ownership of the footage or was notified of it. They claim c. The amount and substantiality of the portion used in
that the Angelo dela Cruz footage is considered a short relation to the copyrighted work as a whole; and
excerpt of an event’s "news" footage and is covered by
fair use.111 d. The effect of the use upon the potential market for or
value of the copyrighted work. Respondents allege that
Copyright protection is not absolute.112 The Intellectual the news footage was only five (5) seconds long, thus
Property Code provides the limitations on copyright: falling under fair use. ABS-CBN belies this contention and
argues that the footage aired for two (2) minutes and 40
CHAPTER VIII seconds.113 According to the Court of Appeals, the
LIMITATIONS ON COPYRIGHT parties admitted that only five (5) seconds of the news
footage was broadcasted by GMA-7.114
Section 184. Limitations on Copyright. - 184.1.
Notwithstanding the provisions of Chapter V, the following This court defined fair use as "aprivilege to use the
acts shall not constitute infringement of copyright: copyrighted material in a reasonable manner without the
consent of the copyright owner or as copying the theme
.... or ideas rather than their expression."115 Fair use is an
exception to the copyright owner’s monopoly of the use
184.2. The provisions of this section shall be interpreted in of the work to avoid stifling "the very creativity which that
such a way as to allow the work to be used in a manner law is designed to foster."116
which does not conflict with the normal exploitation of the
work and does not unreasonably prejudice the right Determining fair use requires application of the four-factor
holder's legitimate interests. test. Section 185 of the Intellectual Property Code lists four
(4) factors to determine if there was fair use of a
.... copyrighted work:

CHAPTER XV a. The purpose and character of the use, including


LIMITATIONS ON PROTECTION whether such use is of a commercial nature or is for non-
profit educational purposes;
Section 212. Limitations on Rights. - Sections 203, 208 and
209 shall not apply where the acts referred to in those b. The nature of the copyrighted work;
Sections are related to:
c. The amount and substantiality of the portion used in
.... relation to the copyrighted work as a whole; and

212.2. Using short excerpts for reporting current events; d. The effect of the use upon the potential market for or
value of the copyrighted work.
....
First, the purpose and character of the use of the
212.4. Fair use of the broadcast subject to the conditions copyrighted material must fall under those listed in Section
under Section 185.(Sec. 44, P.D. No. 49a) (Emphasis 185, thus: "criticism, comment, news reporting, teaching
supplied) including multiple copies for classroom use, scholarship,
research, and similar purposes."117 The purpose and
The determination of what constitutes fair use depends on character requirement is important in view of copyright’s
several factors. Section 185 of the Intellectual Property goal to promote creativity and encourage creation of
Code states: works. Hence, commercial use of the copyrighted work
can be weighed against fair use.
SECTION 185. Fair Use of a Copyrighted Work. —
The "transformative test" is generally used in reviewing the
185.1. The fair use of a copyrighted work for criticism, purpose and character of the usage of the copyrighted
comment, news reporting, teaching including multiple work.118 This court must look into whether the copy of the
copies for classroom use, scholarship, research, and similar work adds "new expression, meaning or message" to
purposes is not an infringement of copyright. . . . In transform it into something else.119 "Meta-use" can also
determining whether the use made of a work in any occur without necessarily transforming the copyrighted
particular case is fair use, the factors to be considered shall work used.120
include:
Second, the nature of the copyrighted work is significant
a. The purpose and character of the use, including in deciding whether its use was fair. If the nature of the
whether such use is of a commercial nature or is for non- work is more factual than creative, then fair use will be
profit educational purposes; weighed in favor of the user.

b. The nature of the copyrighted work; Third, the amount and substantiality of the portion used is
important to determine whether usage falls under fair use.

15
An exact reproduction of a copyrighted work, compared period of six (6) seconds per post. The mobile application
to a small portion of it, can result in the conclusion that its 1 Second Everyday takes it further by capturing and
use is not fair. There may also be cases where, though the stitching one (1) second of video footage taken daily over
entirety of the copyrighted work is used without consent, a span of a certain period.126
its purpose determines that the usage is still fair.121 For
example, a parody using a substantial amount of Whether the alleged five-second footage may be
copyrighted work may be permissible as fair use as considered fair use is a matter of defense. We emphasize
opposed to a copy of a work produced purely for that the case involves determination of probable cause at
economic gain. Lastly, the effect of the use on the the preliminary investigation stage. Raising the defense of
copyrighted work’s market is also weighed for or against fair use does not automatically mean that no infringement
the user. If this court finds that the use had or will have a was committed. The investigating prosecutor has full
negative impact on the copyrighted work’s market, then discretion to evaluate the facts, allegations, and evidence
the use is deemed unfair. during preliminary investigation. Defenses raised during
preliminary investigation are subject to further proof and
The structure and nature of broadcasting as a business evaluation before the trial court. Given the insufficiency of
requires assigned values for each second of broadcast or available evidence, determination of whether the Angelo
airtime. In most cases, broadcasting organizations dela Cruz footage is subject to fair use is better left to the
generate revenue through sale of time or timeslots to trial court where the proceedings are currently pending.
advertisers, which, in turn, is based on market share:122 GMA-7’s rebroadcast of ABS-CBN’s news footage without
Once a news broadcast has been transmitted, the the latter’s consent is not an issue. The mere act of
broadcast becomes relatively worthless to the station. In rebroadcasting without authority from the owner of the
the case of the aerial broadcasters, advertising sales broadcast gives rise to the probability that a crime was
generate most of the profits derived from news reports. committed under the Intellectual Property Code.
Advertising rates are, in turn, governed by market share.
Market share is determined by the number of people I
watching a show at any particular time, relative to total
viewers at that time. News is by nature time-limited, and so Respondents cannot invoke the defense of good faith to
re-broadcasts are generally of little worth because they argue that no probable cause exists.
draw few viewers. Newscasts compete for market share by
presenting their news in an appealing format that will Respondents argue that copyright infringement is malum
capture a loyal audience. Hence, the primary reason for in se, in that "[c]opying alone is not what is being
copyrighting newscasts by broadcasters would seem to prohibited, but its injurious effect which consists in the lifting
be to prevent competing stations from rebroadcasting from the copyright owners’ film or materials, that were the
current news from the station with the best coverage of a result of the latter’s creativity, work and productions and
particular news item, thus misappropriating a portion of without authority, reproduced, sold and circulated for
the market share. commercial use to the detriment of the latter."127

Of course, in the real world there are exceptions to this Infringement under the Intellectual Property Code is
perfect economic view. However, there are also many malum prohibitum. The Intellectual Property Code is a
caveats with these exceptions. A common exception is special law. Copyright is a statutory creation:
that some stations rebroadcast the news of others. The
caveat is that generally, the two stations are not Copyright, in the strict sense of the term, is purely a
competing for market share. CNN, for example, often statutory right. It is a new or independent right granted by
makes news stories available to local broadcasters. First, the statute, and not simply a pre-existing right regulated
the local broadcaster is often not affiliated with a network by the statute. Being a statutory grant, the rights are only
(hence its need for more comprehensive programming), such as the statute confers, and may be obtained and
confining any possible competition to a small enjoyed only with respect to the subjects and by the
geographical area. Second, the local broadcaster is not persons, and on terms and conditions specified in the
in competition with CNN. Individuals who do not have statute.128
cable TV (or a satellite dish with decoder) cannot receive
CNN; therefore there is no competition. . . . Third, CNN sells The general rule is that acts punished under a special law
the right of rebroadcast to the local stations. Ted Turner, are malum prohibitum.129 "An act which is declared
owner of CNN, does not have First Amendment freedom malum prohibitum, malice or criminal intent is completely
of access argument foremost on his mind. (Else he would immaterial."130
give everyone free cable TV so everyone could get CNN.)
He is in the business for a profit. Giving away resources In contrast, crimes mala in seconcern inherently immoral
does not a profit make.123 (Emphasis supplied) acts:

The high value afforded to limited time periods is also seen Not every criminal act, however, involves moral turpitude.
in other media. In social media site Instagram, users are It is for this reason that "as to what crime involves moral
allowed to post up to only 15 seconds of video.124 In short- turpitude, is for the Supreme Court to determine". In
video sharing website Vine,125 users are allowed a shorter resolving the foregoing question, the Court is guided by

16
one of the general rules that crimes mala in se involve to the state of mind beyond voluntariness. It is this intent
moral turpitude, while crimes mala prohibita do not, the that is being punished by crimes mala in se.
rationale of which was set forth in "Zari v. Flores," to wit:
Unlike other jurisdictions that require intent for a criminal
It (moral turpitude) implies something immoral in itself, prosecution of copyright infringement, the Philippines does
regardless of the fact that it is punishable by law or not. It not statutorily support good faith as a defense. Other
must not be merely mala prohibita, but the act itself must jurisdictions provide in their intellectual property codes or
be inherently immoral. The doing of the act itself, and not relevant laws that mens rea, whether express or implied, is
its prohibition by statute fixes the moral turpitude. Moral an element of criminal copyright infringement.138
turpitude does not, however, include such acts as are not
of themselves immoral but whose illegality lies in their being In Canada, criminal offenses are categorized under three
positively prohibited. (Emphasis supplied) (3) kinds: "the full mens rea offence, meaning the
accused’s actual or subjective state of mind has to be
[These] guidelines nonetheless proved short of providing a proved; strict liability offences where no mens rea has to
clear cut solution, for in International Rice Research be proved but the accused can avoid liability if he can
Institute v. NLRC, the Court admitted that it cannot always prove he took all reasonable steps to avoid the particular
be ascertained whether moral turpitude does or does not event; [and] absolute liability offences where Parliament
exist by merely classifying a crime as malum in se or as has made it clear that guilt follows proof of the prescribed
malum prohibitum. There are crimes which are mala in se act only."139 Because of the use of the word "knowingly" in
and yet but rarely involve moral turpitude and there are Canada’s Copyright Act, it has been held that copyright
crimes which involve moral turpitude and are mala infringement is a full mens rea offense.140
prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and In the United States, willful intent is required for criminal
frequently depends on all the circumstances surrounding copyright infringement.141 Before the passage of the No
the violation of the statue.131 (Emphasis in the original) Electronic Theft Act, "civil copyright infringements were
violations of criminal copyright laws only if a defendant
"Implicit in the concept of mala in se is that of mens willfully infringed a copyright ‘for purposes of commercial
rea."132 Mens reais defined as "the nonphysical element advantage or private financial gain.’"142 However, the No
which, combined with the act of the accused, makes up Electronic Theft Act now allows criminal copyright
the crime charged. Most frequently it is the criminal intent, infringement without the requirement of commercial gain.
or the guilty mind[.]"133 The infringing act may or may not be for profit.143

Crimes mala in sepre suppose that the person who did the There is a difference, however, between the required
felonious act had criminal intent to do so, while crimes liability in civil copyright infringement and that in criminal
mala prohibita do not require knowledge or criminal copyright infringement in the United States. Civil copyright
intent: infringement does not require culpability and employs a
strict liability regime144 where "lack of intention to infringe
In the case of mala in se it is necessary, to constitute a is not a defense to an action for infringement."145
punishable offense, for the person doing the act to have
knowledge of the nature of his act and to have a criminal In the Philippines, the Intellectual Property Code, as
intent; in the case of mala prohibita, unless such words as amended, provides for the prosecution of criminal actions
"knowingly" and "willfully" are contained in the statute, for the following violations of intellectual property rights:
neither knowledge nor criminal intent is necessary. In other Repetition of Infringement of Patent (Section 84); Utility
words, a person morally quite innocent and with every Model (Section 108); Industrial Design (Section 119);
intention of being a law abiding citizen becomes a Trademark Infringement (Section 155 in relation to Section
criminal, and liable to criminal penaltes, if he does an act 170); Unfair Competition (Section 168 in relation to Section
prohibited by these statutes.134 (Emphasis supplied) 170); False Designations of Origin, False Description or
Hence, "[i]ntent to commit the crime and intent to Representation (Section 169.1 in relation to Section 170);
perpetrate the act must be distinguished. A person may infringement of copyright, moral rights, performers’ rights,
not have consciously intended to commit a crime; but he producers’ rights, and broadcasting rights (Section 177,
did intend to commit an act, and that act is, by the very 193, 203, 208 and 211 in relation to Section 217); and other
nature of things, the crime itself[.]"135 When an act is violations of intellectual property rights as may be defined
prohibited by a special law, it is considered injurious to by law.
public welfare, and the performance of the prohibited act
is the crime itself.136 The Intellectual Property Code requires strict liability for
copyright infringement whether for a civil action or a
Volition, or intent to commit the act, is different from criminal prosecution; it does not require mens rea or
criminal intent. Volition or voluntariness refers to culpa:146
knowledge of the act being done. On the other hand,
criminal intent — which is different from motive, or the SECTION 216. Remedies for Infringement. —
moving power for the commission of the crime137 — refers

17
216.1. Any person infringing a right protected under this pesos (₱500,000) to One million five hundred thousand
law shall be liable: pesos (₱1,500,000) for the third and subsequent offenses.

a. To an injunction restraining such infringement. The court d. In all cases, subsidiary imprisonment in cases of
may also order the defendant to desist from an insolvency.
infringement, among others, to prevent the entry into the
channels of commerce of imported goods that involve an 217.2. In determining the number of years of imprisonment
infringement, immediately after customs clearance of and the amount of fine, the court shall consider the value
such goods. of the infringing materials that the defendant has
produced or manufactured and the damage that the
b. Pay to the copyright proprietor or his assigns or heirs such copyright owner has suffered by reason of the
actual damages, including legal costs and other infringement.
expenses, as he may have incurred due to the
infringement as well as the profits the infringer may have 217.3. Any person who at the time when copyright subsists
made due to such infringement, and in proving profits the in a work has in his possession an article which he knows,
plaintiff shall be required to prove sales only and the or ought to know, to be an infringing copy of the work for
defendant shall be required to prove every element of the purpose of: a. Selling, letting for hire, or by way of trade
cost which he claims, or, in lieu of actual damages and offering or exposing for sale, or hire, the article;
profits, such damages which to the court shall appear to
be just and shall not be regarded as penalty. b. Distributing the article for purpose of trade, or for any
other purpose to an extent that will prejudice the rights of
c. Deliver under oath, for impounding during the the copyright owner in the work; or
pendency of the action, upon such terms and conditions
as the court may prescribe, sales invoices and other c. Trade exhibit of the article in public, shall be guilty of an
documents evidencing sales, all articles and their offense and shall be liable on conviction to imprisonment
packaging alleged to infringe a copyright and implements and fine as above mentioned. (Sec. 29, P.D. No. 49a)
for making them. (Emphasis supplied)

d. Deliver under oath for destruction without any The law is clear. Inasmuch as there is wisdom in prioritizing
compensation all infringing copies or devices, as well as all the flow and exchange of ideas as opposed to rewarding
plates, molds, or other means for making such infringing the creator, it is the plain reading of the law in conjunction
copies as the court may order. with the actions of the legislature to which we defer. We
have continuously "recognized the power of the legislature
e. Such other terms and conditions, including the payment . . . to forbid certain acts in a limited class of cases and to
of moral and exemplary damages, which the court may make their commission criminal without regard to the
deem proper, wise and equitable and the destruction of intent of the doer. Such legislative enactments are based
infringing copies of the work even in the event of acquittal on the experience that repressive measures which
in a criminal case. depend for their efficiency upon proof of the dealer’s
knowledge or of his intent are of little use and rarely
216.2. In an infringement action, the court shall also have accomplish their purposes."147
the power to order the seizure and impounding of any
article which may serve as evidence in the court Respondents argue that live broadcast of news requires a
proceedings. (Sec. 28, P.D. No. 49a) different treatment in terms of good faith, intent, and
knowledge to commit infringement. To argue this point,
SECTION 217. Criminal Penalties. — 217.1. Any person they rely on the differences of the media used in Habana
infringing any right secured by provisions of Part IV of this et al. v. Robles, Columbia Pictures v. Court of Appeals, and
Actor aiding or abetting such infringement shall be guilty this case:
of a crime punishable by:
Petitioner ABS-CBN argues that lack of notice that the
a. Imprisonment of one (1) year to three (3) years plus a Angelo dela Cruz was under embargo is not a defense in
fine ranging from Fifty thousand pesos (₱50,000) to One copyright infringement and cites the case of Columbia
hundred fifty thousand pesos (₱150,000) for the first Pictures vs. Court of Appeals and Habana et al. vs.
offense. Robles(310 SCRA 511). However, these cases refer to film
and literary work where obviously there is "copying" from
b. Imprisonment of three (3) years and one (1) day to six an existing material so that the copier knew that he is
(6) years plus a fine ranging from One hundred fifty copying from an existing material not owned by him. But,
thousand pesos (₱150,000) to Five hundred thousand how could respondents know that what they are "copying
pesos (₱500,000) for the second offense. was not [theirs]" when they were not copying but merely
receiving live video feed from Reuters and CNN which
c. Imprisonment of six (6) years and one (1) day to nine (9) they aired? What they knew and what they aired was the
years plus a fine ranging from Five hundred thousand Reuters live video feed and the CNN feed which GMA-7 is

18
authorized to carry in its news broadcast, it being a protected by law, and infringement of copyright, or
subscriber of these companies[.] piracy, which is a synonymous term in this connection,
consists in the doing by any person, without the consent of
It is apt to stress that the subject of the alleged copyright the owner of the copyright, of anything the sole right to do
infringement is not a film or literary work but live broadcast which is conferred by statute on the owner of the
of news footage. In a film or literary work, the infringer is copyright.
confronted face to face with the material he is allegedly
copying and therefore knows, or is presumed to know, that ....
what he is copying is owned by another. Upon the other
hand, in live broadcast, the alleged infringer is not A copy of a piracy is an infringement of the original, and it
confronted with the fact that the material he airs or re- is no defense that the pirate, in such cases, did not know
broadcasts is owned by another, and therefore, he whether or not he was infringing any copyright; he at least
cannot be charged of knowledge of ownership of the knew that what he was copying was not his, and he
material by another. This specially obtains in the Angelo copied at his peril.
dela Cruz news footage which GMA-7 received from
Reuters and CNN. Reuters and CNN were beaming live ....
videos from the coverage which GMA-7 received as a
subscriber and, in the exercise of its rights as a subscriber, In cases of infringement, copying alone is not what is
GMA-7 picked up the live video and simultaneously re- prohibited. The copying must produce an "injurious effect".
broadcast it. In simultaneously broadcasting the live video Here, the injury consists in that respondent Robles lifted
footage of Reuters, GMA-7 did not copy the video from petitioners’ book materials that were the result of the
footage of petitioner ABS-CBN[.]148 (Emphasis in the latter’s research work and compilation and
original) misrepresented them as her own. She circulated the book
DEP for commercial use and did not acknowledge
Respondents’ arguments must fail. petitioners as her source.152 (Emphasis supplied)

Respondents are involved and experienced in the Habana and Columbia Pictures did not require knowledge
broadcasting business. They knew that there would be of the infringement to constitute a violation of the
consequences in carrying ABS-CBN’s footage in their copyright. One does not need to know that he or she is
broadcast. That is why GMA-7 allegedly cut the feed from copying a work without consent to violate copyright law.
Reuters upon seeing ABS-CBN’s ogo and reporter. To admit Notice of fact of the embargo from Reuters or CNN is not
a different treatment for broadcasts would mean material to find probable cause that respondents
abandonment of a broadcasting organization’s minimum committed infringement. Knowledge of infringement is
rights, including copyright on the broadcast material and only material when the person is charged of aiding and
the right against unauthorized rebroadcast of copyrighted abetting a copyright infringement under Section 217 of the
material. The nature of broadcast technology is precisely Intellectual Property Code.153
why related or neighboring rights were created and
developed. Carving out an exception for live broadcasts We look at the purpose of copyright in relation to criminal
would go against our commitments under relevant prosecutions requiring willfulness: Most importantly, in
international treaties and agreements, which provide for defining the contours of what it means to willfully infringe
the same minimum rights.149 copyright for purposes of criminal liability, the courts should
remember the ultimate aim of copyright. Copyright is not
Contrary to respondents’ assertion, this court in primarily about providing the strongest possible protection
Habana,150 reiterating the ruling in Columbia Pictures,151 for copyright owners so that they have the highest possible
ruled that lack of knowledge of infringement is not a valid incentive to create more works. The control given to
defense. Habana and Columbia Pictures may have copyright owners is only a means to an end: the promotion
different factual scenarios from this case, but their rulings of knowledge and learning. Achieving that underlying
on copyright infringement are analogous. In Habana, goal of copyright law also requires access to copyrighted
petitioners were the authors and copyright owners of works and it requires permitting certain kinds of uses of
English textbooks and workbooks. The case was anchored copyrighted works without the permission of the copyright
on the protection of literary and artistic creations such as owner. While a particular defendant may appear to be
books. In Columbia Pictures, video tapes of copyrighted deserving of criminal sanctions, the standard for
films were the subject of the copyright infringement suit. determining willfulness should be set with reference to the
larger goals of copyright embodied in the Constitution and
In Habana, knowledge of the infringement is presumed the history of copyright in this country.154
when the infringer commits the prohibited act:
In addition, "[t]he essence of intellectual piracy should be
The essence of intellectual piracy should be essayed in essayed in conceptual terms in order to underscore its
conceptual terms in order to underscore its gravity by an gravity by an appropriate understanding thereof.
appropriate understanding thereof. Infringement of a Infringement of a copyright is a trespass on a private
copyright is a trespass on a private domain owned and domain owned and occupied by the owner of the
occupied by the owner of the copyright, and, therefore, copyright, and, therefore, protected by law, and

19
infringement of copyright, or piracy, which is a Act or aiding or abetting such infringement shall be guilty
synonymous term in this connection, consists in the doing of a crime punishable by:
by any person, without the consent of the owner of the
copyright, of anything the sole right to do which is (a) Imprisonment of one (1) year to three (3) years plus a
conferred by statute on the owner of the copyright."155 fine ranging from Fifty thousand pesos (₱50,000) to One
hundred fifty thousand pesos (₱150,000) for the first
Intellectual property rights, such as copyright and the offense.
neighboring right against rebroadcasting, establish an
artificial and limited monopoly to reward creativity. (b) Imprisonment of three (3) years and one (1) day to six
Without these legally enforceable rights, creators will have (6) years plus a fine ranging from One hundred fifty
extreme difficulty recovering their costs and capturing the thousand pesos (₱150,000) to Five hundred thousand
surplus or profit of their works as reflected in their markets. pesos (₱500,000) for the second offense.
This, in turn, is based on the theory that the possibility of
gain due to creative work creates an incentive which may (c) Imprisonment of six (6) years and one (1) day to nine
improve efficiency or simply enhance consumer welfare or (9) years plus a fine ranging from five hundred thousand
utility. More creativity redounds to the public good. pesos (₱500,000) to One million five hundred thousand
pesos (₱1,500,000) for the third and subsequent offenses.
These, however, depend on the certainty of enforcement.
Creativity, by its very nature, is vulnerable to the free rider (d) In all cases, subsidiary imprisonment in cases of
problem. It is easily replicated despite the costs to and insolvency. (Emphasis supplied) Corporations have
efforts of the original creator. The more useful the creation separate and distinct personalities from their officers or
is in the market, the greater the propensity that it will be directors.157 This court has ruled that corporate officers
copied. The most creative and inventive individuals are and/or agents may be held individually liable for a crime
usually those who are unable to recover on their creations. committed under the Intellectual Property Code:158

Arguments against strict liability presuppose that the Petitioners, being corporate officers and/or directors,
Philippines has a social, historical, and economic climate through whose act, default or omission the corporation
similar to those of Western jurisdictions. As it stands, there is commits a crime, may themselves be individually held
a current need to strengthen intellectual property answerable for the crime. . . . The existence of the
protection. corporate entity does not shield from prosecution the
corporate agent who knowingly and intentionally caused
Thus, unless clearly provided in the law, offenses involving the corporation to commit a crime. Thus, petitioners
infringement of copyright protections should be cannot hide behind the cloak of the separate corporate
considered malum prohibitum. It is the act of infringement, personality of the corporation to escape criminal liability.
not the intent, which causes the damage. To require or A corporate officer cannot protect himself behind a
assume the need to prove intent defeats the purpose of corporation where he is the actual, present and efficient
intellectual property protection. actor.159

Nevertheless, proof beyond reasonable doubt is still the However, the criminal liability of a corporation’s officers or
standard for criminal prosecutions under the Intellectual employees stems from their active participation in the
Property Code. commission of the wrongful act:

VIII The principle applies whether or not the crime requires the
consciousness of wrongdoing. It applies to those
Respondents argue that GMA-7’s officers and employees corporate agents who themselves commit the crime and
cannot be held liable for infringement under the to those, who, by virtue of their managerial positions or
Intellectual Property Code since it does not expressly other similar relation to the corporation, could be deemed
provide direct liability of the corporate officers. They responsible for its commission, if by virtue of their
explain that "(i) a corporation may be charged and relationship to the corporation, they had the power to
prosecuted for a crime where the penalty is fine or both prevent the act. Moreover, all parties active in promoting
imprisonment and fine, and if found guilty, may be fined; a crime, whether agents or not, are principals. Whether
or (ii) a corporation may commit a crime but if the statute such officers or employees are benefited by their delictual
prescribes the penalty therefore to be suffered by the acts is not a touchstone of their criminal liability. Benefit is
corporate officers, directors or employees or other not an operative fact.160 (Emphasis supplied) An
persons, the latter shall be responsible for the offense."156 accused’s participation in criminal acts involving violations
of intellectual property rights is the subject of allegation
Section 217 of the Intellectual Property Code states that and proof. The showing that the accused did the acts or
"any person" may be found guilty of infringement. It also contributed in a meaningful way in the commission of the
imposes the penalty of both imprisonment and fine: infringements is certainly different from the argument of
lack of intent or good faith. Active participation requires a
Section 217. Criminal Penalties. - 217.1. Any person showing of overt physical acts or intention to commit such
infringing any right secured by provisions of Part IV of this acts. Intent or good faith, on the other hand, are

20
inferences from acts proven to have been or not been [t]his Office however finds respondents Grace Dela Peña-
committed. Reyes and John Oliver T. Manalastas liable for copyright
infringement penalized under Republic Act No. 8293. It is
We find that the Department of Justice committed grave undisputed that complainant ABSCBN holds the exclusive
abuse of discretion when it resolved to file the Information ownership and copyright over the "Angelo [d]ela Cruz
against respondents despite lack of proof of their actual news footage". Hence, any airing and re-broadcast of the
participation in the alleged crime. said footage without any consent and authority from ABS-
CBN will be held as an infringement and violation of the
Ordering the inclusion of respondents Gozon, GMA-7 intellectual property rights of the latter. Respondents
President; Duavit, Jr., Executive Vice-President; Flores, Grace Dela Peña-Reyes as the Head of the News
Vice-President for News and Public Affairs; and Soho, Operation and John Oliver T. Manalastas as the Program
Director for News, as respondents, Secretary Agra Manager cannot escape liability since the news control
overturned the City Prosecutor’s finding that only room was under their direct control and supervision.
respondents Dela Peña-Reyes and Manalastas are Clearly, they must have been aware that the said footage
responsible for the crime charged due to their duties.161 coming from Reuters or CNN has a "No Access Philippines"
The Agra Resolution reads: advisory or embargo thus cannot be re-broadcast. We
find no merit to the defense of ignorance interposed by
Thus, from the very nature of the offense and the penalty the respondents. It is simply contrary to human experience
involved, it is necessary that GMA-7’s directors, officers, and logic that experienced employees of an established
employees or other officers thereof responsible for the broadcasting network would be remiss in their duty in
offense shall be charged and penalized for violation of the ascertaining if the said footage has an embargo.164
Sections 177 and 211 of Republic Act No. 8293. In their (Emphasis supplied)
complaint for libel, respondents Felipe L Gozon, Gilberto R.
Duavit, Jr., Marissa L. Flores, Jessica A.Soho, Grace Dela We agree with the findings as to respondents Dela Peña-
Pena-Reyes, John Oliver T. Manalastas felt they were Reyes and Manalastas. Both respondents committed acts
aggrieved because they were "in charge of the that promoted infringement of ABS-CBN’s footage. We
management, operations and production of news and note that embargoes are common occurrences in and
public affairs programs of the network" (GMA-7). This is between news agencies and/or broadcast
clearly an admission on respondents’ part. Of course, organizations.165 Under its Operations Guide, Reuters has
respondents may argue they have no intention to infringe two (2) types of embargoes: transmission embargo and
the copyright of ABS-CBN; that they acted in good faith; publication embargo.166 Under ABS-CBN’s service
and that they did not directly cause the airing of the contract with Reuters, Reuters will embargo any content
subject footage, but again this is preliminary investigation contributed by ABS-CBN from other broadcast subscribers
and what is required is simply probable cause. Besides, within the same geographical location:
these contentions can best be addressed in the course of
trial.162 (Citation omitted) 4a. Contributed Content

In contrast, the Office of the City Prosecutor, in the You agree to supply us at our request with news and sports
Resolution dated December 3, 2004, found that news stories broadcast on the Client Service of up to three
respondents Gozon, Duavit, Jr., Flores, and Soho did not (3) minutes each for use in our Services on a non-exclusive
have active participation in the commission of the crime basis and at a cost of US$300.00 (Three Hundred United
charged: States Dollars) per story. In respect of such items we agree
to embargo them against use by other broadcast
This Office, however, does not subscribe to the view that subscribers in the Territory and confirm we will observe all
respondents Atty. Felipe Gozon, Gilberto Duavit, Marissa other conditions of usage regarding Contributed Content,
Flores and Jessica Soho should be held liable for the said as specified in Section 2.5 of the Reuters Business Principles
offense. Complainant failed to present clear and for Television Services. For the purposes of clarification, any
convincing evidence that the said respondents conspired geographical restriction imposed by you on your use of
with Reyes and Manalastas. No evidence was adduced to Contributed Content will not prevent us or our clients from
prove that these respondents had an active participation including such Contributed Content in online transmission
in the actual commission of the copyright infringement or services including the internet. We acknowledge
they exercised their moral ascendancy over Reyes and Contributed Content is your copyright and we will not
Manalastas in airing the said footage. It must be stressed acquire any intellectual property rights in the Contributed
that, conspiracy must be established by positive and Content.167 (Emphasis supplied)
conclusive evidence. It must be shown to exist as clearly
and convincingly as the commission of the offense Respondents Dela Peña-Reyes and Manalastas merely
itself.163 (Emphasis supplied, citations omitted) denied receiving the advisory sent by Reuters to its clients,
including GMA-7. As in the records, the advisory reads:
The City Prosecutor found respondents Dela Peña-Reyes
and Manalastas liable due to the nature of their work and ADVISORY - - +++LIVE COVER PLANS+++
responsibilities. He found that: PHILIPPINES: HOSTAGE RETURN

21
**ATTENTION ALL CLIENTS** In sum, the trial court erred in failing to resume the
proceedings after the designated period. The Court of
PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER Appeals erred when it held that Secretary Agra
PLANNED FOR THURSDAY, JULY 22: committed errors of jurisdiction despite its own
pronouncement that ABS-CBN is the owner of the
.... copyright on the news footage. News should be
differentiated from expression of the news, particularly
SOURCE: ABS-CBN TV AND WEB RESTRICTIONS: NO ACCESS when the issue involves rebroadcast of news footage. The
PHILIPPINES.168 Court of Appeals also erroneously held that good faith, as.
well as lack of knowledge of infringement, is a defense
There is probable cause that respondents Dela Peña- against criminal prosecution for copyright and
Reyes and Manalastas directly committed copyright neighboring rights infringement. In its current form, the
infringement of ABS-CBN’s news footage to warrant Intellectual Property Code is malum prohibitum and
piercing of the corporate veil. They are responsible in airing prescribes a strict liability for copyright infringement. Good
the embargoed Angelo dela Cruz footage. They could faith, lack of knowledge of the copyright, or lack of intent
have prevented the act of infringement had they been to infringe is not a defense against copyright infringement.
diligent in their functions as Head of News Operations and Copyright, however, is subject to the rules of fair. use and
Program Manager. will be judged on a case-to-case basis. Finding probable
cause includes a determination of the defendant's active
Secretary Agra, however, committed grave abuse of participation, particularly when the corporate veil is
discretion when he ordered the filing of the Information pierced in cases involving a corporation's criminal liability.
against all respondents despite the erroneous piercing of
the corporate veil. Respondents Gozon, Duavit, Jr., Flores, WHEREFORE, the Petition is partially GRANTED. The
and Soho cannot be held liable for the criminal liability of Department of Justice Resolution dated June 29, 2010
the corporation. ordering the filing of the Information is hereby REINSTATED
as to respondents Grace Dela Pena-Reyes and John Oliver
Mere membership in the Board or being President per se T. Manalastas. Branch 93 of the Regional Trial Court of
does not mean knowledge, approval, and participation in Quezon City is directed to continue with the proceedings
the act alleged as criminal. There must be a showing of in Criminal Case No. Q-04-131533.
active participation, not simply a constructive one.
SO ORDERED.
Under principles of criminal law, the principals of a crime
are those "who take a direct part in the execution of the
act; [t]hose who directly force or induce others to commit
it; [or] [t]hose who cooperate in the commission of the
offense by another act without which it would not have
been accomplished."169 There is conspiracy "when two or
more persons come to an agreement concerning the
commission of a felony and decide to commit it":170

Conspiracy is not presumed. Like the physical acts


constituting the crime itself, the elements of conspiracy
must be proven beyond reasonable doubt.1âwphi1 While
conspiracy need not be established by direct evidence,
for it may be inferred from the conduct of the accused
before, during and after the commission of the crime, all
taken together, however, the evidence must be strong
enough to show the community of criminal design. For
conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is the
product of intentionality on the part of the cohorts.

It is necessary that a conspirator should have performed


some overt act as a direct or indirect contribution to the
execution of the crime committed. The overt act may
consist of active participation in the actual commission of
the crime itself, or it may consist of moral assistance to his
co-conspirators by being present at the commission of the
crime or by exerting moral ascendancy over the other co-
conspirators[.]171 (Emphasis supplied, citations omitted)

22
2001, rising to 42% in 2006."9 Thus, on January 18, 2002, a
G.R. No. 178947 June 26, 2013 Subscription Agreement10 was executed by Desmond, as
representative of SBMEI and JV China, and Dio, as
VIRGINIA DE LOS SANTOS-DIO, as authorized representative of HS Equities.
representative of H.S. EQUITIES, LTD., and WESTDALE
While no Certificate of Stock was issued either to HS
ASSETS, LTD., Petitioner, Equities or to Dio, HS Equities was expressly granted minority
vs. protection rights in a subsequent Subscription and
THE HONORABLE COURT OF APPEALS, JUDGE RAMON Shareholders Agreement11 dated March 12, 2002, stating
S. CAGUIOA, in his capacity as Presiding Judge of that there shall be "a nominee of the Subscriber to be
Branch 74, Regional Trial Court, Olongapo City, and elected as Treasurer/Chief Financial Officer, who may not
TIMOTHY J. DESMOND, Respondents. be removed by the Board of Directors without the
affirmative vote of the Subscriber."12 Accordingly, Dio was
x-----------------------x elected as a member of SBMEI’s Board of Directors and
further appointed as its Treasurer.13 The parties later
executed two (2) Investor’s Convertible Promissory Notes –
G.R. No. 179079 one dated April 4, 200114 and another dated May 8,
200115 – covering HS Equities’ infusion of a total of
PEOPLE OF THE PHILIPPINES, Petitioner, US$1,000,000.00 for the purpose of purchasing machinery,
vs. equipment, accessories, and materials to be used for the
TIMOTHY J. DESMOND, Respondent. construction of Ocean Adventure.

DECISION In June 2002, Dio, this time on behalf of Westdale, invested


another US$1,000,000.0016 in a separate business venture,
PERLAS-BERNABE, J.: called the Miracle Beach Hotel Project (Miracle Beach),
which involved the development of a resort owned by
Before the Court are consolidated petitions for review on Desmond adjoining Ocean Adventure. They agreed that
certiorari1 assailing the November 8, 2006 Decision2 and the said investment would be used to settle SBMEI’s
July 19, 2007 Resolution3 of the Court of Appeals (CA) in ₱40,000,000.00 loan obligation to First Metro Investment
CA-G.R. SP No. 88285, upholding the validity of the trial Corporation and for the construction of 48 lodging
court’s dismissal of separate criminal informations for units/cabanas.17 However, when the corresponding
estafa against private respondent Timothy J. Desmond subscription agreement was presented to Dio by SBMEI for
(Desmond) due to lack of probable cause. approval, it contained a clause stating that the "funds in
the Subscription Bank Account" were also to be used for
The Facts the "funding of Ocean Adventure’s Negative Cash Flow
not exceeding US$200,000.00."18 This was in conflict with
In 2001, petitioner Virginia De Los Santos-Dio (Dio), the the exclusive purpose and intent of Westdale’s investment
majority stockholder of H.S. Equities, Ltd. (HS Equities) and in Miracle Beach and as such, Dio refused to sign the
authorized representative of Westdale Assets, Ltd. subscription agreement.
(Westdale),4 was introduced to Desmond, the Chairman
and Chief Executive Officer (CEO) of the Subic Bay Marine Dio further claimed that she found out that, contrary to
Exploratorium, Inc. (SBMEI), and the authorized Desmond’s representations, SBMEI actually had no
representative of Active Environments, Inc. and JV China, capacity to deliver on its guarantees, and that in fact, as
Inc. (JV China), the majority shareholder of SBMEI.5 After of 2001, it was incurring losses amounting to
some discussion on possible business ventures, Dio, on ₱62,595,216.00.19 She likewise claimed to have discovered
behalf of HS Equities, decided to invest a total of false entries in the company’s books and financial
US$1,150,000.006 in SBMEI’s Ocean Adventure Marine Park statements – specifically, its overvaluation of the marine
(Ocean Adventure), a theme park to be constructed at animals and its non-disclosure of the true amount of JV
the Subic Bay Freeport Zone which, when operational, China’s investment20 – which prompted her to call for an
would showcase live performances of false-killer whales audit investigation. Consequently, Dio discovered that,
and sea lions. In this relation, Dio claimed that Desmond without her knowledge and consent, Desmond made
led her to believe that SBMEI had a capital of certain disbursements from Westdale’s special account,
US$5,500,000.00, inclusive of the value of the marine meant only for Miracle Beach expenditures (special
mammals to be used in Ocean Adventure,7 and also account), and diverted a total of US$72,362.78 therein for
guaranteed substantial returns on investment.8 Desmond the operating expenses of Ocean Adventure.21 When
even presented a Business Plan, indicating that: (a) Ocean Desmond refused to execute an undertaking to return the
Adventure’s "attendance will rise from 271,192 in 2001 to diverted funds, Dio, in her capacity as Treasurer of SBMEI,
just over 386,728 in 2006, with revenues rising from suspended the release of the remaining funds in the
US$4,420,000.00 million to US$7,290,000.00 million in the aforesaid special account.22
same time frame"; (b) "early investors are expected to
reap an annual return of 23% in 2001, rising to 51% in 2006"; Eventually, after Dio was ousted as Director and Treasurer
and (c) "fully priced shares would yield a 19% return] in of SBMEI,23 she filed, on April 19, 2004, two (2) criminal

23
complaints24 (subject criminal complaints) for estafa (a) crime of Estafa under Article 315 (1)(b) and (2)(a) of the
through false pretenses under Article 315(1)(b)25 of the Revised Penal Code in relation to PD No. 1689.31
Revised Penal Code26 (RPC); and (b) with unfaithfulness
or abuse of confidence through misappropriation or In view of the foregoing, corresponding criminal
conversion under Article 315(2)(a)27 of the RPC, both informations32 (subject informations) were filed with the
against Desmond before the Olongapo City Prosecutor’s Regional Trial Court of Olongapo City, Branch 74 (RTC),
Office (City Prosecutor’s Office), docketed as IS Nos. 04-M- docketed as Criminal Case Nos. 516-2004 and 515-2004.
992 and 04-M-993. The accusatory portions thereof read as follows:

In defense, Desmond maintained that his representation Criminal Case No. 516-200433
of himself as Chairman and CEO of SBMEI was not a sham
and that Dio has not even proven that he did not have the That in or about and sometime in early 2001, in Olongapo
expertise and qualifications to double her investment. City, Philippines, and within the jurisdiction of this
Among others, he also denied having been fired from Honorable Court, the abovenamed accused, being the
Beijing Landa Aquarium Co. Ltd. for his supposed officer of Subic Bay Marine Exploration, Inc. (SBMEI), acting
incompetence and mismanagement. He further asserted as a syndicate and by means of deceit, did then and
that it was not deceitful to value the marine mammals at there, willfully, unlawfully and feloniously defraud H.S.
US$3,720,000.00 as equity contribution of JV China in EQUITIES LIMITED, represented in this case by Virginia S.
SBMEI, notwithstanding the fact that two (2) false killer Delos Santos-Dio in the following manner, to wit: the said
whales had already perished before the company could accused by means of false manifestations and fraudulent
start operations. This is because the said valuation, in any representations which he made to said Virginia S. Delos
case, would be based on the collective income-earning Santos-Dio to the effect that he had the expertise and
capacity of the entire animal operating system derived qualifications, as well as the resources, influence, credit
from revenues generated by marine park attendance and and business transaction with the Subic Bay Metropolitan
admission fees.28 Authority (SBMA) and other financing institutions to ensure
the viability of the Subic Bay Marine Exploration Ocean
In reply, Dio insisted that SBMEI, at the outset, never had Adventure Project (SBMEOA), which he represented to be
sufficient assets or resources of its own because, contrary a qualified and legally existing investment enterprise with
to Desmond’s claims, the total amount of US$2,300,000.00 capacity to solicit investment from the general public, by
it purportedly invested in buildings and equipment actually submitting documents for the purpose, which
came from the investments Dio’s company made in representations he knew to be false and fraudulent and
SBMEI.29 the supporting documents are similarly spurious and were
only made in order to induce said Virginia S. Delos Santos-
After the preliminary investigation, the City Prosecutor Dio to invest and deliver as in fact she invested and
issued a Resolution30 dated August 26, 2004, finding delivered a total amount of One Million One Hundred Fifty
probable cause against Desmond for the Thousand US Dollars ($1,150,000.00) to the said accused on
abovementioned crimes, to wit: the strength of said manifestations and representations
and supporting documents, and said accused, once in
The foregoing clearly applies in the instant two (2) cases as possession of the said amount, misapplied, converted and
borne out by the following facts, to with [sic]: (1) Desmond, misappropriated the same to his own personal use and
as the Chairman and Chief Executive Office of SBMEI and benefit, to the damage and prejudice of H.S. Equities
in order to persuade Dio to invest, represented that he Limited in the amount of US $1,150,000.00 or
possessed the necessary influence, expertise and Php57,500,000.00 Pesos, the dollar computed at the rate
resources (in terms of credit and property) for the project of Php 50.00 to [US]$1.00 which was the prevailing rate of
knowing the same to be false as he never had the capital exchange of a dollar to peso at the time of the commission
for the project as borne out by his correspondences with of the offense.
Dio; and (2) Dio fell for these misrepresentations and the
lure of profit offered by Desmond, thereby being induced CONTRARY TO LAW.
to invest the amounts of $1,150,000.00 and $1,000,000.00 to
the damage and prejudice of her company. Criminal Case No. 515-200434

The elements of the crimes charged were thus established That in or about and sometime during the period from
in these cases, namely Dio parted with her money upon June 2002 to July 2002, in Olongapo City, Philippines, and
the prodding and enticement of respondent on the false within the jurisdiction of this Honorable Court, the above-
pretense that he had the capacity and resources for the named accused, did then and there, willfully, unlawfully
proposed project. In the end, Dio was not able to get her and feloniously defraud Westdale Assets, Limited
money back, thus causing her damage and prejudice. represented in this case by Virginia S. Delos Santos-Dio in
Moreover, such defraudation or misappropriation having the following manner to wit: the said accused received in
been committed by Desmond through his company SBMEI trust and for administration from the said Virginia S. Delos
involving funds solicited from Dio as a member of the Santos-Dio the amount of One Million US Dollars
general public in contravention of the public interest, the ($1,000,000.00) under the express obligation of using the
probable cause clearly exists to indict Desmond for the same to pay the loan facility of the Subic Bay Marine

24
Exploration, Inc. (SBMEI) with First Metro Investment allegations that would show that the accused had
Corporation and to fund the construction and personal business meetings with the SBMA and said
development of the Miracle Beach Project but the said financial institutions. As to how and in what manner and
accused, once in possession of the said amount, with scope accused exercised such alleged power, influence
grave abuse of confidence and with intent to defraud, and credit over these juridical entities remain a bare and
misapplied, misappropriated and converted the same for self-serving averment in the absence of any factual detail
his own use and benefit by devoting it to a purpose or use or account.
different from that agreed upon and despite repeated
demands made upon him to account for and to return the Finally, it cannot be gainsaid [sic] that accused was the
said amount, he failed and refused and still fails and one who personally valuated the marine mammals
refuses to do so, to the damage and prejudice of the said contributed by JV China Incorporated to the Subic Bay
Westdale Assets, Limited in the amount of US $1,000,000.00 Marine Exploration, Inc. as capital amounting to US$3.724
or its equivalent to FIFTY MILLION (Php 50,000,000.00) Pesos, Million. Evidence clearly point to an independent
Philippine Currency, the dollar being computed at the rate valuation done by a third party namely Beijing Landa
of Php50.00 to $ 1.00 which was the prevailing rate of Aquarium that valued the marine mammals under the
exchange at the commission of the offense, to the Buy-Out Agreement dated September 9, 1998. Needless to
damage and prejudice of the latter in the state, the onus is on complainant to controvert this
aforementioned amount. valuation. Again, however, no adequate proof was
adduced along this line.
CONTRARY TO LAW.
Second, the element of personal misappropriation by the
Aggrieved, Desmond filed a Motion for Reconsideration,35 accused under par. 1(b) Article 315 of the Revised Penal
as well as a Motion to Withdraw Filed Informations.36 He Code is likewise not present. While it may be conceded
also filed before the RTC a Motion to Defer Further that there was money utilized to pay salaries of expatriates
Proceedings and to Defer Issuance of Warrant of Arrest37 and staff as well as the cost of utilities amounting to
but subsequently withdrew the same and filed, instead, a US$72,272.00 complainant failed to show that said money
Motion for Judicial Determination of Probable Cause.38 was taken from her companies’ investments in SBMEI. It
must be pointed out that other than complainant’s bare
The RTC Ruling allegation, there was no document presented
categorically stating that the investment of complainant’s
In an Order39 dated October 21, 2004, the RTC ruled in companies were earmark for a particular payment or
favor of Desmond and declared that no probable cause project. Hence, when the investment entered SBMEI’s
exists for the crimes charged against him since the financial coffers, the same presumably were co-mingled
elements of estafa were not all present, to wit: with other monies of the corporation.

First, the element of misrepresentation or deceit found in Moreover and more revealing, is the fact that again there
par. 2 (a) Article 315 of the Revised Penal Code is absent. was no showing that it was accused who personally
It must be emphasized that the promises allegedly made caused the payment of these expenses allegedly in
to the complainant by the accused that her company’s violation of the objective of the investment. It must be
investment will significantly increase, clearly appeared in noted that SBMEI is a corporation and not a single
the Subic Bay Marine Exploration, Inc.’s ("SBMEI", for proprietorship. Being a corporation, expenses paid of such
brevity) printed business plan dated January 12, 2001 a kind as utilities and salaries are not authorized personally
(Annex "A", Complaint-Affidavit dated 19 April 2004). and solely by the President nor the Chief Executive Officer
Verily, this is SBMEI’s representation or "come on" to would- nor even by the Chairman of the Board for that matter.
be investors and not a personal assurance of the accused. These are corporate acts that are passed through board
The fact that accused was the company’s Chief Executive resolutions. Hence, these corporate acts can in no way be
Officer and Chairman of the Board of Directors is of no considered personal acts of the accused. Yet, he was
moment in the absence of any evidence to show that singled out among all 5 members of the Board of Directors
accused personally prepared the business plan thereby who presumably, in the ordinary course of business,
making the alleged "rosy picture" his own personal approved by resolution the payments of such utilities and
enticements to the complainant. Therefore, there being a salaries. Consequently, there is again insufficiency of
dearth of evidence pointing to the accused as author of evidence that the accused alone caused the payment of
the SBMEI’s business plan, any misrepresentation or deceit these salaries and utilities for the sole purpose of pocketing
committed cannot be personally attributed to him. the money thereby using the same for personal gain.40

Furthermore, the court cannot find any sufficient evidence Consequently, the RTC denied the issuance of a warrant
that the accused personally assured the complainant of arrest and hold departure order against Desmond and
about his so-called power, influence and credit with the ordered the dismissal of the cases against him:
SBMA and other financial institutions that would
supposedly insure the viability and profitability of the WHEREFORE, foregoing considered, the subject motion for
project. Note that nowhere in the Complaint-Affidavit of judicial determination of probable cause is favorably
the private complainant are there specific factual granted. There being no probable cause, the cases

25
against the accused must be dismissed as they are hereby encourage would-be investors from [sic] investing in such
DISMISSED. The motions to issue warrant of arrest and Hold kind of business undertaking.

Departure Order as well as the prayer for provisional Moreover, we likewise agree with the trial court that no
remedy are necessarily DENIED. factual allegations were made by private complainants as
to how such false pretense of power and influence was
SO ORDERED.41 made upon them by Desmond and which convinced
private complainants to part with their money. It bears
Given the RTC’s dismissal of the foregoing criminal cases, stressing that the allegations of false pretense of power
the City Prosecutor’s Office filed motion for and influence in a case of estafa are mere conclusions of
reconsideration which was, however, denied. As such, it law which must be substantiated at the very least by
filed a petition for certiorari and mandamus42 before the circumstances which would show that the person
CA on the ground of grave abuse of discretion. Relatedly, accused of committing estafa did indeed commit acts of
Dio also filed a petition-in-intervention43 before the CA, false representations. As the records show, there was no
praying for the reinstatement of the subject criminal misrepresentation on the part of Desmond that he is the
complaints. Chairman and Chief Executive Officer of SBMEI which is a
corporation engaged in the business of developing
The CA Ruling marine parks. Significantly, the records likewise show that
SBMEI did indeed build and develop a marine park in Subic
In its November 8, 2006 Decision,44 the CA upheld the Bay (Ocean Adventure) for the purposes stated in its
RTC’s authority to dismiss a criminal case if in the process business plan and had entered into a long-term lease
of determining probable cause for issuing a warrant of agreement with SBMA. Documentary evidence in the form
arrest, it also finds the evidence on record insufficient to of the Report of Independent Auditors to SBMEI shows the
establish probable cause. It explained that such dismissal amount of investment the corporation had invested in the
is an exercise of judicial discretion sanctioned under said business undertaking. For instance, the corporation
Section 6(a), Rule 112 of the Revised Rules of Criminal had invested the amount of ₱106,788,219.00 in buildings
Procedure. On this score, the CA evaluated the evidence and equipment alone. It has also assets consisting of
presented and agreed with the RTC’s conclusions that marine mammals which are necessary for the operation of
there was no sufficient basis showing that Desmond the marine park. In this respect, we cannot subscribe to
committed estafa by means of false pretenses. Neither private complainants’ contention that there was
was it established that the money sourced from petitioner misrepresentation on the part of private respondent that
Dio was converted by respondent Desmond for some he had overvalued the worth of the marine mammals it
other purpose other than that for which it was intended. had purchased from Beijing Landa Aquarium Co., Ltd. of
Pertinent portions of the CA Decision restated the RTC’s the Republic of China. This claim of private complainants
observations in this wise: of the deceitful acts employed by Desmond in overpricing
the value of the marine animals for US$3.724 Million when
In the instant case, the alleged false representations by in fact the sea animals were only valued for one U.S. dollar
Desmond which allegedly induced private complainants was not corroborated by the evidence on hand.
H.S. Equities, Ltd. ("H.S. Equities") and Dio, to part with their
money are not supported by the facts on record. First, the xxxx
alleged false representation employed by Desmond with
respect to his expertise and qualifications in the form of In the same manner, the facts in the case at bar that
influence, credit and business transactions with the Subic would allegedly constitute a criminal charge of estafa
Bay Metropolitan Authority (SBMA) and financial under par. 1(b) are wanting. Be it noted that under the said
institutions and such resources to enable private paragraph, estafa with unfaithfulness or abuse of
complainants to double its investment with SBMEI has not confidence through misappropriation or conversion of the
been shown to be false. money, goods or any other personal property must be
received in trust, on commission, for administration, or
Indeed, nowhere in the documentary evidence presented under any other obligation which involves the duty to
by private complainants that allegedly contained the make delivery thereof or to return the same. It is not amiss
above false representations does it show that it was private to note that a perusal of private complainants’ Complaint-
respondent himself who made such representation. Affidavit shows that subject money in the amount of
Notably, the SBMEI’s Business Plan dated January 12, 2001 US$1,000,000.00 to be used for the Miracle Beach Project
to which private complainants anchor such allegation was placed in a special account with Equitable-PCI Bank.
does not indicate that the representations made therein As the records show, the said funds were placed by Dio
came personally from Desmond. In addition, neither does under the control of Fatima Paglicawan, an employee of
it appear from such document that the statements therein Westdale, such that, no money can be withdrawn from
were used as a form of a personal assurance coming from the special account without the signature of the said
Desmond that private complainants would indeed double employee, Desmond and a certain John Corcoran.
the amount they had invested with SBMEI. If at all, we Therefore, at such time, it cannot be said that the funds
agree with the trial court that statements made in the said were received for administration or already under the
business plan were merely a form of enticement to juridical possession of Desmond. Meanwhile, we would like

26
to emphasize that to constitute conversion, it presupposes The first is made by the public prosecutor, during a
that the thing has been devoted to a purpose or use preliminary investigation, where he is given broad
different from that agreed upon. Verily, a facial discretion to determine whether probable cause exists for
examination of the Journal Voucher and Check Voucher the purpose of filing a criminal information in court.
pertaining to the withdrawals made on such account Whether or not that function has been correctly
clearly shows that the disbursements were not only discharged by the public prosecutor, i.e., whether or not
authorized by Paglicawan but likewise indicated that the he has made a correct ascertainment of the existence of
purpose for such withdrawals was to cover payments for probable cause in a case, is a matter that the trial court
BIR taxes and the salaries of local employees and itself does not and may not be compelled to pass upon.47
expatriates.
The second is one made by the judge to ascertain whether
To repeat, these withdrawals as well as the purpose a warrant of arrest should be issued against the accused.
thereof were known to Paglicawan when [sic] she In this respect, the judge must satisfy himself that, on the
authorized the disbursements. Paglicawan, who was basis of the evidence submitted, there is a necessity for
designated by private complainant Dio to control the placing the accused under custody in order not to
release of the said funds is presumed to have acted under frustrate the ends of justice. If the judge, therefore, finds no
the latter’s authority. Such miscommunication between probable cause, the judge cannot be forced to issue the
Dio and Paglicawan with respect to the purpose of the arrest warrant.48 Notably, since the judge is already duty-
funds does not make out a case of estafa there being no bound to determine the existence or non-existence of
abuse of confidence or conversion to speak of taking into probable cause for the arrest of the accused immediately
account that the said funds were released under the upon the filing of the information, the filing of a motion for
presumed authority of private complainants through judicial determination of probable cause becomes a
Paglicawan, and which were indeed used for the purpose mere superfluity,49 if not a deliberate attempt to cut short
for which it was withdrawn. That being the case, there can the process by asking the judge to weigh in on the
be no damage or prejudice to Westdale and Dio as there evidence without a full-blown trial.
was no disturbance in the property rights of Westdale and
Dio in the said funds since the same were used for the In the case of Co v. Republic,50 the Court emphasized the
purpose for which it was disbursed. settled distinction between an executive and a judicial
determination of probable cause, viz:51
Then again, we agree with the trial court that there is no
sufficient evidence adduced to support the criminal We reiterate that preliminary investigation should be
charges of estafa against Desmond. As pointed out by the distinguished as to whether it is an investigation for the
trial court, while private respondent is the Chairman and determination of a sufficient ground for the filing of the
Chief Executive Officer of SBMEI, there is no showing that information or it is an investigation for the determination of
he had personally and solely authorized the application of a probable cause for the issuance of a warrant of arrest.
the above funds for the payment of expenses not directly The first kind of preliminary investigation is executive in
connected with the Miracle Beach Project. Nor does it nature. It is part of the prosecution's job.1âwphi1 The
appear that as Chairman and Chief Executive Officer, second kind of preliminary investigation which is more
Desmond has been appointed to execute, on his own, properly called preliminary examination is judicial in nature
such corporate acts.45 (Citations omitted) and is lodged with the judge.

The City Prosecutor and Dio filed their respective motions On this score, it bears to stress that a judge is not bound by
for reconsideration which were both denied in a the resolution of the public prosecutor who conducted the
Resolution46 dated July 19, 2007. preliminary investigation and must himself ascertain from
the latter’s findings and supporting documents whether
Hence, the instant petitions. probable cause exists for the purpose of issuing a warrant
of arrest. This prerogative is granted by no less than the
The Issue Before the Court Constitution which provides that "no warrant of arrest shall
issue except upon probable cause to be determined
The primordial issue in this case is whether or not the CA personally by the judge after examination under oath or
erred in finding no grave abuse of discretion on the part of affirmation of the complainant and the witnesses he may
the RTC when it dismissed the subject informations for lack produce."52
of probable cause.
While a judge’s determination of probable cause is
The Court’s Ruling generally confined to the limited purpose of issuing arrest
warrants, Section 5(a),53 Rule 112 of the Revised Rules of
The petitions are meritorious. Criminal Procedure explicitly states that a judge may
immediately dismiss a case if the evidence on record
Determination of probable cause may be either executive clearly fails to establish probable cause,54 viz:
or judicial.
SEC. 5. When warrant of arrest may issue. – (a) By the
Regional Trial Court. – Within ten (10) days from the filing of

27
the complaint or information, the judge shall personally probable cause can be clearly inferred from the evidence
evaluate the resolution of the prosecutor and its presented and not when its existence is simply doubtful.
supporting evidence. He may immediately dismiss the After all, it cannot be expected that upon the filing of the
case if the evidence on record clearly fails to establish information in court the prosecutor would have already
probable cause. If he finds probable cause, he shall issue presented all the evidence necessary to secure a
a warrant of arrest, or a commitment order if the accused conviction of the accused, the objective of a previously-
had already been arrested, pursuant to a warrant issued conducted preliminary investigation being merely to
by the judge who conducted preliminary investigation or determine whether there is sufficient ground, to engender
when the complaint or information was filed pursuant to a well-founded belief that a crime has been committed
Section 7 of this Rule. In case of doubt on the existence of and that the respondent is probably guilty thereof and
probable cause, the judge may order the prosecutor to should be held for trial.59 In this light, given that the lack of
present additional evidence within five (5) days from probable cause had not been clearly established in this
notice and the issue must be resolved by the court within case, the CA erred, and the RTC gravely abused its
thirty (30) days from the filing of the complaint or discretion, by ruling to dismiss Criminal Case Nos. 515-2004
information. (Emphasis and underscoring supplied) and 516-2004. Indeed, these cases must stand the muster
of a full-blown trial where the parties could be given, as
In this regard, so as not to transgress the public they should be given, the opportunity to ventilate their
prosecutor’s authority, it must be stressed that the judge’s respective claims and defenses, on the basis of which the
dismissal of a case must be done only in clear-cut cases court a quo can properly resolve the factual disputes
when the evidence on record plainly fails to establish therein.
probable cause – that is when the records readily show
uncontroverted, and thus, established facts which WHEREFORE, the petitions are GRANTED. The November 8,
unmistakably negate the existence of the elements of the 2006 Decision and July 19, 2007 Resolution of the Court of
crime charged. On the contrary, if the evidence on record Appeals in CA G.R. SP No. 88285 which affirmed the
shows that, more likely than not, the crime charged has October 21, 2004 Order of Dismissal issued by the Regional
been committed and that respondent is probably guilty of Trial Court of Olongapo City, Branch 74 are SET ASIDE. The
the same, the judge should not dismiss the case and two (2) criminal informations for estafa against respondent
thereon, order the parties to proceed to trial. In doubtful Timothy J. Desmond in Criminal Case Nos. 515-2004 and
cases, however, the appropriate course of action would 516-2004 are hereby REINSTATED. Accordingly, the trial
be to order the presentation of additional evidence.55 court is directed to proceed with the arraignment of the
accused and the trial of the case with dispatch.
In other words, once the information is filed with the court
and the judge proceeds with his primordial task of SO ORDERED.
evaluating the evidence on record, he may either: (a)
issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record
clearly fails to establish probable cause; and (c) order the
prosecutor to submit additional evidence, in case he
doubts the existence of probable cause.56

Applying these principles, the Court finds that the RTC’s


immediate dismissal, as affirmed by the CA, was improper
as the standard of clear lack of probable cause was not
observed. In this case, records show that certain essential
facts – namely, (a) whether or not Desmond committed
false representations that induced Dio to invest in Ocean
Adventure; and (b) whether or not Desmond utilized the
funds invested by Dio solely for the Miracle Beach Project
for purposes different from what was agreed upon –
remain controverted. As such, it cannot be said that the
absence of the elements of the crime of estafa under
Article 315(2)(a)57 and 315(1) (b)58 of the RPC had
already been established, thereby rendering the RTC’s
immediate dismissal of the case highly improper.

Lest it be misconceived, trial judges will do well to


remember that when a perceived gap in the evidence
leads to a "neither this nor that" conclusion, a purposeful
resolution of the ambiguity is preferable over a doubtful
dismissal of the case. Verily, a judge's discretion to dismiss
a case immediately after the filing of the information in
court is appropriate only when the failure to establish

28
G.R. No. 197293 April 21, 2014 While Alfredo’s motion for reconsideration was still pending
before the Office of the City Prosecutor of Mandaluyong,
ALFREDO C. MENDOZA, Petitioner, two informations for qualified theft10 and estafa11 were
filed before the Regional Trial Court, Branch 212,
vs.
Mandaluyong City. On March 31, 2008, Alfredo filed a
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., motion for determination of probable cause12 before the
Respondents. trial court. On April 28, 2008, he also filed a motion to defer
arraignment.
DECISION
Several clarificatory hearings were scheduled but were
LEONEN, J.: not conducted.13 On February 4, 2009, the parties agreed
to submit all pending incidents, including the clarificatory
While the determination of probable cause to charge a hearing, for resolution.14
person of a crime is the sole function of the. prosecutor,
the trial court may, in the protection of one's fundamental On March 3, 2009, the trial court, through Presiding Judge
right to liberty, dismiss the case if, upon a personal Rizalina Capco-Umali, issued an order15 dismissing the
assessment of the evidence, it finds that the evidence complaint, stating that:
does not establish probable cause.
After conducting an independent assessment of the
This is a petition for review on certiorari1 assailing the Court evidence on record which includes the assailed Resolution
of Appeals' decision2 dated January 14, 2011, which dated 04 March 2008, the court holds that the evidence
reversed the Regional Trial Court's dismissal of the adduced does not support a finding of probable cause for
complaint against petitioner Alfredo C. Mendoza for the offenses of qualified theft and estafa. x x x.16
qualified theft and estafa.
Juno Cars filed a motion for reconsideration, which the trial
This case stems from a complaint-affidavit filed by Juno court denied on July 3, 2009.17
Cars, Inc. through its representative, Raul C. Evangelista,
on January 8, 2008 for qualified theft and estafa against Juno Cars then filed a petition for certiorari with the Court
Alfredo.3 of Appeals, arguing that the trial court acted without or in
excess of its jurisdiction and with grave abuse of discretion
In the complaint-affidavit, Juno Cars alleged that on June when it dismissed the complaint. It argued that "the
2, 2007, it hired Alfredo as Trade-In/Used Car Supervisor. On determination of probable cause and the decision
November 19, 2007, its Dealer/Operator, Rolando Garcia, whether or not to file a criminal case in court, rightfully
conducted a partial audit of the used cars and discovered belongs to the public prosecutor."18
that five (5) cars had been sold and released by Alfredo
without Rolando’s or the finance manager’s permission.4 On January 14, 2011, the Court of Appeals rendered a
decision,19 reversed the trial court, and reinstated the
The partial audit showed that the buyers of the five cars case. In its decision, the appellate court ruled that the trial
made payments, but Alfredo failed to remit the payments court acted without or in excess of its jurisdiction "in
totalling ₱886,000.00. It was further alleged that while there supplanting the public prosecutor’s findings of probable
were 20 cars under Alfredo’s custody, only 18 were cause with her own findings of insufficiency of evidence
accounted for. Further investigation revealed that Alfredo and lack of probable cause."20
failed to turn over the files of a 2001 Hyundai Starex and a
Honda City 1.5 LXI. Juno Cars alleged that taking into Aggrieved, Alfredo filed a petition for review under Rule 45
account the unremitted amounts and the acquisition cost before this court. In essence, he argued that the trial court
of the Honda City, Alfredo pilfered a total amount of was correct in finding that there was no probable cause
₱1,046,000.00 to its prejudice and damage.5 as shown by the evidence on record. He argued that
"judicial determination of probable cause is broader than
In his counter-affidavit, Alfredo raised, among others, Juno [the] executive determination of probable cause"21 and
Cars’ supposed failure to prove ownership over the five (5) that "[i]t is not correct to say that the determination of
cars or its right to possess them with the purported probable cause is exclusively vested on the prosecutor x x
unremitted payments. Hence, it could not have suffered x."22
damage.6
In its comment,23 Juno Cars argued that Alfredo
On March 4, 2008, Provincial Prosecutor Rey F. Delgado presented questions, issues, and arguments that were a
issued a Resolution7 finding probable cause and mere rehash of those already considered and passed
recommending the filing of an information against Alfredo upon by the appellate court.
for qualified theft and estafa.
The Office of the Solicitor General, arguing for public
Alfredo moved for reconsideration, but the motion was respondent, stated in its comment24 that the appellate
denied.8 He then filed a petition for review with the court correctly sustained the public prosecutor in his
Department of Justice on May 16, 2008.9 findings of probable cause against Alfredo. Since there

29
was no showing of grave abuse of discretion on the part probable cause in a case, is a matter that the trial court
of Prosecutor Rey F. Delgado, the trial court should respect itself does not and may not be compelled to pass upon.
his determination of probable cause.
The judicial determination of probable cause, on the other
In his reply,25 Alfredo reiterated that "judicial hand, is one made by the judge to ascertain whether a
determination of probable cause[,] while not a superior warrant of arrest should be issued against the accused.
faculty[,] covers a broader encompassing perspective in The judge must satisfy himself that based on the evidence
the disposition of the issue on the existence of probable submitted, there is necessity for placing the accused
cause."26 He argued that the findings of the trial court under custody in order not to frustrate the ends of justice.
should be accorded greater weight than the appellate If the judge finds no probable cause, the judge cannot be
court’s. It merely reviewed the findings of the trial court. forced to issue the arrest warrant.32

The primordial issue is whether the trial court may dismiss The difference is clear: The executive determination of
an information filed by the prosecutor on the basis of its probable cause concerns itself with whether there is
own independent finding of lack of probable cause. enough evidence to support an Information being filed.
The judicial determination of probable cause, on the other
Time and again, this court has been confronted with the hand, determines whether a warrant of arrest should be
issue of the difference between the determination of issued. In People v. Inting:33
probable cause by the prosecutor on one hand and the
determination of probable cause by the judge on the x x x Judges and Prosecutors alike should distinguish the
other. We examine these two concepts again. preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest from the preliminary
Juno Cars filed a complaint against Alfredo for qualified investigation proper which ascertains whether the
theft27 and estafa under Article 315, fourth paragraph, no. offender should be held for trial or released. Even if the two
3(c)28 of the Revised Penal Code. Since qualified theft is inquiries are conducted in the course of one and the same
punishable by reclusion perpetua, a preliminary proceeding, there should be no confusion about the
investigation must first be conducted "to determine objectives. The determination of probable cause for the
whether there is sufficient ground to engender a well- warrant of arrest is made by the Judge. The preliminary
founded belief that a crime has been committed and the investigation proper—whether or not there is reasonable
respondent is probably guilty thereof, and should be held ground to believe that the accused is guilty of the offense
for trial," in accordance with Rule 112, Section 1 of the charged and, therefore, whether or not he should be
Rules on Criminal Procedure. subjected to the expense, rigors and embarrassment of
trial—is the function of the Prosecutor.34 (Emphasis
At this stage, the conduct of the preliminary investigation supplied)
and the subsequent determination of the existence of
probable cause lie solely within the discretion of the public While it is within the trial court’s discretion to make an
prosecutor.29 If upon evaluation of the evidence, the independent assessment of the evidence on hand, it is
prosecutor finds sufficient basis to find probable cause, he only for the purpose of determining whether a warrant of
or she shall then cause the filing of the information with the arrest should be issued. The judge does not act as an
court. appellate court of the prosecutor and has no capacity to
review the prosecutor’s determination of probable cause;
Once the information has been filed, the judge shall then rather, the judge makes a determination of probable
"personally evaluate the resolution of the prosecutor and cause independent of the prosecutor’s finding.
its supporting evidence"30 to determine whether there is
probable cause to issue a warrant of arrest. At this stage, People v. Court of Appeals and Jonathan Cerbo35
a judicial determination of probable cause exists. discussed the rationale. In that case, Jonathan Cerbo
allegedly shot Rosalinda Dy in the presence of his father,
In People v. Castillo and Mejia,31 this court has stated: Billy Cerbo. An information for murder was filed against
Jonathan Cerbo. The daughter of Rosalinda Dy, as private
There are two kinds of determination of probable cause: complainant, executed a complaint-affidavit charging
executive and judicial. The executive determination of Billy Cerbo with conspiracy. The prosecutor then filed a
probable cause is one made during preliminary motion to amend the information, which was granted by
investigation. It is a function that properly pertains to the the court. The information was then amended to include
public prosecutor who is given a broad discretion to Billy Cerbo as one of the accused, and a warrant of arrest
determine whether probable cause exists and to charge was issued against him.
those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise Billy Cerbo filed a motion to quash the warrant arguing
stated, such official has the quasi-judicial authority to that it was issued without probable cause. The trial court
determine whether or not a criminal case must be filed in granted this motion, recalled the warrant, and dismissed
court. Whether or not that function has been correctly the case against him. The Court of Appeals affirmed this
discharged by the public prosecutor, i.e., whether or not dismissal. This court, however, reversed the Court of
he has made a correct ascertainment of the existence of

30
Appeals and ordered the reinstatement of the amended The Constitution prohibits the issuance of search warrants
information against Billy Cerbo, stating that: or warrants of arrest where the judge has not personally
determined the existence of probable cause. The phrase
In granting this petition, we are not prejudging the criminal "upon probable cause to be determined personally by the
case or the guilt or innocence of Private Respondent Billy judge after examination under oath or affirmation of the
Cerbo. We are simply saying that, as a general rule, if the complainant and the witnesses he may produce" allows a
information is valid on its face and there is no showing of determination of probable cause by the judge ex parte.
manifest error, grave abuse of discretion or prejudice on
the part of the public prosecutor, courts should not dismiss For this reason, Section 6, paragraph (a) of Rule 112 of the
it for ‘want of evidence,’ because evidentiary matters Rules on Criminal Procedure mandates the judge to
should be presented and heard during the trial. The "immediately dismiss the case if the evidence on record
functions and duties of both the trial court and the public fails to establish probable cause." Section 6, paragraph (a)
prosecutor in "the proper scheme of things" in our criminal of Rule 112 reads:
justice system should be clearly understood.
Section 6. When warrant of arrest may issue. — (a) By the
The rights of the people from what could sometimes be an Regional Trial Court. — Within ten (10) days from the filing
"oppressive" exercise of government prosecutorial powers of the complaint or information, the judge shall personally
do need to be protected when circumstances so require. evaluate the resolution of the prosecutor and its
But just as we recognize this need, we also acknowledge supporting evidence. He may immediately dismiss the
that the State must likewise be accorded due process. case if the evidence on record clearly fails to establish
Thus, when there is no showing of nefarious irregularity or probable cause. If he finds probable cause, he shall issue
manifest error in the performance of a public prosecutor’s a warrant of arrest, or a commitment order if the accused
duties, courts ought to refrain from interfering with such has already been arrested pursuant to a warrant issued by
lawfully and judicially mandated duties. the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to
In any case, if there was palpable error or grave abuse of section 7 of this Rule. In case of doubt on the existence of
discretion in the public prosecutor’s finding of probable probable cause, the judge may order the prosecutor to
cause, the accused can appeal such finding to the justice present additional evidence within five (5) days from
secretary and move for the deferment or suspension of the notice and the issue must be resolved by the court within
proceedings until such appeal is resolved.36 (Emphasis thirty (30) days from the filing of the complaint of
supplied) information.

In this case, the resolution dated March 4, 2008 of In People v. Hon. Yadao:38
Prosecutor Rey F. Delgado found that the facts and
evidence were "sufficient to warrant the indictment of Section 6, Rule 112 of the Rules of Court gives the trial court
[petitioner] x x x."37 There was nothing in his resolution three options upon the filing of the criminal information: (1)
which showed that he issued it beyond the discretion dismiss the case if the evidence on record clearly failed to
granted to him by law and jurisprudence. establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to
While the information filed by Prosecutor Delgado was present additional evidence within five days from notice in
valid, Judge Capco-Umali still had the discretion to make case of doubt as to the existence of probable cause.
her own finding of whether probable cause existed to
order the arrest of the accused and proceed with trial. But the option to order the prosecutor to present
additional evidence is not mandatory.1âwphi1 The court’s
Jurisdiction over an accused is acquired when the warrant first option under the above is for it to "immediately dismiss
of arrest is served. Absent this, the court cannot hold the the case if the evidence on record clearly fails to establish
accused for arraignment and trial. probable cause." That is the situation here: the evidence
on record clearly fails to establish probable cause against
Article III, Section 2 of the Constitution states: the respondents.39 (Emphasis supplied)

The right of the people to be secure in their persons, It is also settled that "once a complaint or information is
houses, papers, and effects against unreasonable filed in court, any disposition of the case, whether as to its
searches and seizures of whatever nature and for any dismissal or the conviction or the acquittal of the accused,
purpose shall be inviolable, and no search warrant or rests in the sound discretion of the court."40
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after In this case, Judge Capco-Umali made an independent
examination under oath or affirmation of the complainant assessment of the evidence on record and concluded
and the witnesses he may produce, and particularly that "the evidence adduced does not support a finding of
describing the place to be searched and the persons or probable cause for the offenses of qualified theft and
things to be seized. 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

31
possessed or owned by them, or that these vehicles were G.R. No. 182677 August 3, 2010
received by Alfredo, to be able to substantiate the charge
of qualified theft. She also found that the complaint "[did] JOSE ANTONIO C. LEVISTE, Petitioner,
not state with particularity the exact value of the alleged
vs.
office files or their valuation purportedly have been
removed, concealed or destroyed by the accused,"43
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ,
which she found crucial to the prosecution of the crime of HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE
estafa under Article 315, fourth paragraph, no. 3(c) of the RAFAEL DE LAS ALAS, Respondents.
Revised Penal Code. She also noted that:
DECISION
x x x As a matter of fact, this court had even ordered that
this case be set for clarificatory hearing to clear out CARPIO MORALES, J.:
essential matters pertinent to the offense charged and
even directed the private complainant to bring Jose Antonio C. Leviste (petitioner) assails via the present
documents relative to the same/payment as well as petition for review filed on May 30, 2008 the August 30,
affidavit of witnesses/buyers with the end view of satisfying 2007 Decision1 and the April 18, 2008 Resolution2 of the
itself that indeed probable cause exists to commit the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the
present case which private complainant failed to do.44 trial court’s Orders of January 24, 31, February 7, 8, all in
2007, and denied the motion for reconsideration,
Accordingly, with the present laws and jurisprudence on respectively.
the matter, Judge Capco-Umali correctly dismissed the
case against Alfredo. Petitioner was, by Information3 of January 16, 2007,
charged with homicide for the death of Rafael de las Alas
Although jurisprudence and procedural rules allow it, a on January 12, 2007 before the Regional Trial Court (RTC)
judge must always proceed with caution in dismissing of Makati City. Branch 150 to which the case was raffled,
cases due to lack of probable cause, considering the presided by Judge Elmo Alameda, forthwith issued a
preliminary nature of the evidence before it. It is only when commitment order4 against petitioner who was placed
he or she finds that the evidence on hand absolutely fails under police custody while confined at the Makati
to support a finding of probable cause that he or she can Medical Center.5
dismiss the case. On the other hand, if a judge finds
probable cause, he or she must not hesitate to proceed After petitioner posted a ₱40,000 cash bond which the trial
with arraignment and trial in order that justice may be court approved,6 he was released from detention, and his
served. arraignment was set on January 24, 2007.

WHEREFORE, the petition is GRANTED. The decision dated The private complainants-heirs of De las Alas filed, with the
January 14, 2011 of the Court of Appeals in CA-G.R. SP. No. conformity of the public prosecutor, an Urgent Omnibus
110774 is REVERSED and SET ASIDE. Criminal Case Nos. Motion7 praying, inter alia, for the deferment of the
MC08-11604-05 against Alfredo C. Mendoza are proceedings to allow the public prosecutor to re-examine
DISMISSED. the evidence on record or to conduct a reinvestigation to
determine the proper offense.
SO ORDERED.
The RTC thereafter issued the (1) Order of January 24,
20078 deferring petitioner’s arraignment and allowing the
prosecution to conduct a reinvestigation to determine the
proper offense and submit a recommendation within 30
days from its inception, inter alia; and (2) Order of January
31, 20079 denying reconsideration of the first order.
Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte


Manifestation and Motion before the trial court to defer
acting on the public prosecutor’s recommendation on the
proper offense until after the appellate court resolves his
application for injunctive reliefs, or alternatively, to grant
him time to comment on the prosecutor’s
recommendation and thereafter set a hearing for the
judicial determination of probable cause.10 Petitioner also
separately moved for the inhibition of Judge Alameda
with prayer to defer action on the admission of the
Amended Information.11

32
The trial court nonetheless issued the other assailed orders, of which he filed an urgent application for admission to
viz: (1) Order of February 7, 200712 that admitted the bail pending appeal. The appellate court denied
Amended Information13 for murder and directed the petitioner’s application which this Court, in G.R. No.
issuance of a warrant of arrest; and (2) Order of February 189122, affirmed by Decision of March 17, 2010.
8, 200714 which set the arraignment on February 13, 2007.
Petitioner questioned these two orders via supplemental The Office of the Solicitor General (OSG) later argued that
petition before the appellate court. the present petition had been rendered moot since the
presentation of evidence, wherein petitioner actively
The appellate court dismissed petitioner’s petition, hence, participated, had been concluded.18
his present petition, arguing that:
Waiver on the part of the accused must be distinguished
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE from mootness of the petition, for in the present case,
THE REINVESTIGATION OF THE CRIMINAL CASE BELOW petitioner did not, by his active participation in the trial,
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN waive his stated objections.
FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT Section 26, Rule 114 of the Rules of Court provides:
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE SEC. 26. Bail not a bar to objections on illegal arrest, lack
HAVING NO BASIS IN THE RULES OF COURT[;] of or irregular preliminary investigation. – An application for
or admission to bail shall not bar the accused from
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF challenging the validity of his arrest or the legality of the
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCO’S warrant issued therefor, or from assailing the regularity or
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, questioning the absence of a preliminary investigation of
AND SETTING THE CASE BELOW FOR ARRAIGNMENT, the charge against him, provided that he raises them
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS before entering his plea. The court shall resolve the matter
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO as early as practicable but not later than the start of the
THE QUESTIONABLE REINVESTIGATION AND ILLEGAL trial of the case.
AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY
THIS HONORABLE COURT (sic); [AND] By applying for bail, petitioner did not waive his right to
challenge the regularity of the reinvestigation of the
CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN charge against him, the validity of the admission of the
HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY Amended Information, and the legality of his arrest under
BASED ON MERE SPECULATIONS AND CONJECTURES, the Amended Information, as he vigorously raised them
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE prior to his arraignment. During the arraignment on March
BEING ADDUCED DURING THE REINVESTIGATION, 21, 2007, petitioner refused to enter his plea since the issues
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED he raised were still pending resolution by the appellate
PETITIONER’S MOTION FOR A HEARING FOR JUDICIAL court, thus prompting the trial court to enter a plea of "not
DETERMINATION OF PROBABLE CAUSE.15 (emphasis in the guilty" for him.
original omitted)
The principle that the accused is precluded after
Records show that the arraignment scheduled on March arraignment from questioning the illegal arrest or
21, 2007 pushed through during which petitioner refused to the lack of or irregular preliminary
plead, drawing the trial court to enter a plea of "not guilty" investigation applies "only if he voluntarily enters his
for him. plea and participates during trial, without previously
invoking his objections thereto."19 There must be clear and
Prior thereto or on February 23, 2007, petitioner filed an convincing proof that petitioner had an actual intention to
Urgent Application for Admission to Bail Ex Abundanti relinquish his right to question the existence of probable
Cautela16 which the trial court, after hearings thereon, cause. When the only proof of intention rests on what a
granted by Order of May 21, 2007,17 it finding that the party does, his act should be so manifestly consistent with,
evidence of guilt for the crime of murder is not strong. It and indicative of, an intent to voluntarily and
accordingly allowed petitioner to post bail in the amount unequivocally relinquish the particular right that no other
of ₱300,000 for his provisional liberty. explanation of his conduct is possible.20

The trial court, absent any writ of preliminary injunction From the given circumstances, the Court cannot
from the appellate court, went on to try petitioner under reasonably infer a valid waiver on the part of petitioner to
the Amended Information. By Decision of January 14, 2009, preclude him from obtaining a definite resolution of the
the trial court found petitioner guilty of homicide, objections he so timely invoked. Other than its allegation
sentencing him to suffer an indeterminate penalty of six of active participation, the OSG offered no clear and
years and one day of prision mayor as minimum to 12 years convincing proof that petitioner’s participation in the trial
and one day of reclusion temporal as maximum. From the was unconditional with the intent to voluntarily and
Decision, petitioner filed an appeal to the appellate court, unequivocally abandon his petition. In fact, on January 26,
docketed as CA-G.R. CR No. 32159, during the pendency

33
2010, petitioner still moved for the early resolution of the
present petition.21 When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary
Whatever delay arising from petitioner’s availment of investigation, the complaint or information may be filed by
remedies against the trial court’s Orders cannot be a prosecutor without need of such investigation provided
imputed to petitioner to operate as a valid waiver on his an inquest has been conducted in accordance with
part. Neither can the non-issuance of a writ of preliminary existing rules. In the absence or unavailability of an inquest
injunction be deemed as a voluntary relinquishment of prosecutor, the complaint may be filed by the offended
petitioner’s principal prayer. The non-issuance of such party or a peace officer directly with the proper court on
injunctive relief only means that the appellate court did the basis of the affidavit of the offended party or arresting
not preliminarily find any exception22 to the long-standing officer or person.
doctrine that injunction will not lie to enjoin a criminal
prosecution.23 Consequently, the trial of the case took its Before the complaint or information is filed, the person
course. arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the
The petition is now moot, however, in view of the trial provisions of Article 125 of the Revised Penal Code, as
court’s rendition of judgment. amended, in the presence of his counsel. Notwithstanding
the waiver, he may apply for bail and the investigation
A moot and academic case is one that ceases to present must be terminated within fifteen (15) days from its
a justiciable controversy by virtue of supervening events, inception.
so that a declaration thereon would be of no practical use
or value.24 After the filing of the complaint or information in court
without a preliminary investigation, the accused may,
The judgment convicting petitioner of homicide under the within five (5) days from the time he learns of its filing, ask
Amended Information for murder operates as a for a preliminary investigation with the same right to
supervening event that mooted the present petition. adduce evidence in his defense as provided in this Rule.
Assuming that there is ground25 to annul the finding of (underscoring supplied)
probable cause for murder, there is no practical use or
value in abrogating the concluded proceedings and A preliminary investigation is required before the filing of a
retrying the case under the original Information for complaint or information for an offense where the penalty
homicide just to arrive, more likely or even definitely, at the prescribed by law is at least four years, two months and
same conviction of homicide. Mootness would have also one day without regard to fine.28 As an exception, the
set in had petitioner been convicted of murder, for proof rules provide that there is no need for a preliminary
beyond reasonable doubt, which is much higher than investigation in cases of a lawful arrest without a warrant29
probable cause, would have been established in that involving such type of offense, so long as an inquest, where
instance. available, has been conducted.30

Instead, however, of denying the petition outright on the Inquest is defined as an informal and summary
ground of mootness, the Court proceeds to resolve the investigation conducted by a public prosecutor in criminal
legal issues in order to formulate controlling principles to cases involving persons arrested and detained without the
guide the bench, bar and public.26 In the present case, benefit of a warrant of arrest issued by the court for the
there is compelling reason to clarify the remedies purpose of determining whether said persons should
available before and after the filing of an information in remain under custody and correspondingly be charged in
cases subject of inquest. court.31

After going over into the substance of the petition and the It is imperative to first take a closer look at the predicament
assailed issuances, the Court finds no reversible error on of both the arrested person and the private complainant
the part of the appellate court in finding no grave abuse during the brief period of inquest, to grasp the respective
of discretion in the issuance of the four trial court Orders. remedies available to them before and after the filing of a
complaint or information in court.
In his first assignment of error, petitioner posits that the
prosecution has no right under the Rules to seek from the BEFORE THE FILING OF COMPLAINT OR INFORMATION IN
trial court an investigation or reevaluation of the case COURT, the private complainant may proceed in
except through a petition for review before the coordinating with the arresting officer and the inquest
Department of Justice (DOJ). In cases when an accused is officer during the latter’s conduct of inquest. Meanwhile,
arrested without a warrant, petitioner contends that the the arrested person has the option to avail of a 15-day
remedy of preliminary investigation belongs only to the preliminary investigation, provided he duly signs a waiver
accused. of any objection against delay in his delivery to the proper
judicial authorities under Article 125 of the Revised Penal
The contention lacks merit. Code. For obvious reasons, this remedy is not available to
the private complainant since he cannot waive what he
Section 6,27 Rule 112 of the Rules of Court reads: does not have. The benefit of the provisions of Article 125,

34
which requires the filing of a complaint or information with revisions and to ensure that the information is sufficient in
the proper judicial authorities within the applicable form and substance."41
period,32 belongs to the arrested person.
x x x Since no evidence has been presented at that stage,
The accelerated process of inquest, owing to its summary the error would appear or be discoverable from a review
nature and the attendant risk of running against Article of the records of the preliminary investigation. Of course,
125, ends with either the prompt filing of an information in that fact may be perceived by the trial judge himself but,
court or the immediate release of the arrested person.33 again, realistically it will be the prosecutor who can initially
Notably, the rules on inquest do not provide for a motion determine the same. That is why such error need not be
for reconsideration.34 manifest or evident, nor is it required that such nuances as
offenses includible in the offense charged be taken into
Contrary to petitioner’s position that private complainant account. It necessarily follows, therefore, that the
should have appealed to the DOJ Secretary, such remedy prosecutor can and should institute remedial
is not immediately available in cases subject of inquest. measures[.]42 (emphasis and underscoring supplied)

Noteworthy is the proviso that the appeal to the DOJ The prosecution of crimes appertains to the executive
Secretary is by "petition by a proper party under such rules department of the government whose principal power
as the Department of Justice may prescribe."35 The rule and responsibility is to see that our laws are faithfully
referred to is the 2000 National Prosecution Service Rule on executed. A necessary component of this power to
Appeal,36 Section 1 of which provides that the Rule shall execute our laws is the right to prosecute their violators.
"apply to appeals from resolutions x x x in cases subject of The right to prosecute vests the prosecutor with a wide
preliminary investigation/ reinvestigation." In cases subject range of discretion – the discretion of what and whom to
of inquest, therefore, the private party should first avail of charge, the exercise of which depends on a smorgasbord
a preliminary investigation or reinvestigation, if any, before of factors which are best appreciated by prosecutors.43
elevating the matter to the DOJ Secretary.
The prosecution’s discretion is not boundless or infinite,
In case the inquest proceedings yield no probable cause, however.44 The standing principle is that once an
the private complainant may pursue the case through the information is filed in court, any remedial measure such as
regular course of a preliminary investigation. a reinvestigation must be addressed to the sound
discretion of the court. Interestingly, petitioner supports this
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, view.45 Indeed, the Court ruled in one case that:
the rules yet provide the accused with another opportunity
to ask for a preliminary investigation within five days from The rule is now well settled that once a complaint or
the time he learns of its filing. The Rules of Court and the information is filed in court, any disposition of the case,
New Rules on Inquest are silent, however, on whether the whether as to its dismissal or the conviction or the acquittal
private complainant could invoke, as respondent heirs of of the accused, rests in the sound discretion of the court.
the victim did in the present case, a similar right to ask for Although the prosecutor retains the direction and control
a reinvestigation. of the prosecution of criminal cases even when the case is
already in court, he cannot impose his opinion upon the
The Court holds that the private complainant can move tribunal. For while it is true that the prosecutor has the
for reinvestigation, subject to and in light of the ensuing quasi-judicial discretion to determine whether or not a
disquisition. criminal case should be filed in court, once the case had
already been brought therein any disposition the
All criminal actions commenced by a complaint or prosecutor may deem proper thereafter
information shall be prosecuted under the direction and
control of the public prosecutor.37 The private should be addressed to the court for its consideration and
complainant in a criminal case is merely a witness and not approval. The only qualification is that the action of the
a party to the case and cannot, by himself, ask for the court must not impair the substantial rights of the accused
reinvestigation of the case after the information had been or the right of the People to due process of law.
filed in court, the proper party for that being the public
prosecutor who has the control of the prosecution of the xxxx
case.38 Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action,39 In such an instance, before a re-investigation of the case
and is granted the authority to prosecute,40 the private may be conducted by the public prosecutor, the
complainant, by counsel and with the conformity of the permission or consent of the court must be secured. If after
public prosecutor, can file a motion for reinvestigation. such re-investigation the prosecution finds a cogent basis
to withdraw the information or otherwise cause the
In fact, the DOJ instructs that before the arraignment of dismissal of the case, such proposed course of action may
the accused, trial prosecutors must "examine the be taken but shall likewise be addressed to the sound
Information vis-à-vis the resolution of the investigating discretion of the court.46 (underscoring supplied)
prosecutor in order to make the necessary corrections or

35
While Abugotal v. Judge Tiro47 held that to ferret out the Considering the general rule that an information may be
truth, a trial is to be preferred to a reinvestigation, the Court amended even in substance and even without leave of
therein recognized that a trial court may, where the court at any time before entry of plea, does it mean that
interest of justice so requires, grant a motion for the conduct of a reinvestigation at that stage is a mere
reinvestigation of a criminal case pending before it. superfluity?

Once the trial court grants the prosecution’s motion for It is not.
reinvestigation, the former is deemed to have deferred to
the authority of the prosecutorial arm of the Government. Any remedial measure springing from the reinvestigation –
Having brought the case back to the drawing board, the be it a complete disposition or an intermediate
prosecution is thus equipped with discretion – wide and far modification53 of the charge – is eventually addressed to
reaching – regarding the disposition thereof,48 subject to the sound discretion of the trial court, which must make an
the trial court’s approval of the resulting proposed course independent evaluation or assessment of the merits of the
of action. case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for
Since a reinvestigation may entail a modification of the the prosecution to consider whether a reinvestigation is
criminal information as what happened in the present necessary to adduce and review the evidence for
case, the Court’s holding is bolstered by the rule on purposes of buttressing the appropriate motion to be filed
amendment of an information under Section 14, Rule 110 in court.
of the Rules of Court:
More importantly, reinvestigation is required in cases
A complaint or information may be amended, in form or in involving a substantial amendment of the information. Due
substance, without leave of court, at any time before the process of law demands that no substantial amendment
accused enters his plea. After the plea and during the trial, of an information may be admitted without conducting
a formal amendment may only be made with leave of another or a new preliminary investigation. In Matalam v.
court and when it can be done without causing prejudice The 2nd Division of the Sandiganbayan,54 the Court ruled
to the rights of the accused. that a substantial amendment in an information entitles an
accused to another preliminary investigation, unless the
However, any amendment before plea, which amended information contains a charge related to or is
downgrades the nature of the offense charged in or included in the original Information.
excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with The question to be resolved is whether the amendment of
notice to the offended party and with leave of court. The the Information from homicide to murder is considered a
court shall state its reasons in resolving the motion and substantial amendment, which would make it not just a
copies of its order shall be furnished all parties, especially right but a duty of the prosecution to ask for a preliminary
the offended party. investigation.

If it appears at any time before judgment that a mistake The Court answers in the affirmative.
has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon the A substantial amendment consists of the recital of facts
filing of a new one charging the proper offense in constituting the offense charged and determinative of the
accordance with section 11, Rule 119, provided the jurisdiction of the court. All other matters are merely of
accused would not be placed in double jeopardy. The form. The following have been held to be mere formal
court may require the witnesses to give bail for their amendments: (1) new allegations which relate only to the
appearance at the trial. (emphasis supplied) range of the penalty that the court might impose in the
event of conviction; (2) an amendment which does not
In fine, before the accused enters a plea, a formal or charge another offense different or distinct from that
substantial amendment of the complaint or information charged in the original one; (3) additional allegations
may be made without leave of court.49 After the entry of which do not alter the prosecution’s theory of the case so
a plea, only a formal amendment may be made but with as to cause surprise to the accused and affect the form of
leave of court and only if it does not prejudice the rights of defense he has or will assume; (4) an amendment which
the accused. After arraignment, a substantial amendment does not adversely affect any substantial right of the
is proscribed except if the same is beneficial to the accused; and (5) an amendment that merely adds
accused.50 specifications to eliminate vagueness in the information
and not to introduce new and material facts, and merely
It must be clarified though that not all defects in an states with additional precision something which is already
information are curable by amendment prior to entry of contained in the original information and which adds
plea. An information which is void ab initio cannot be nothing essential for conviction for the crime charged.
amended to obviate a ground for quashal.51 An
amendment which operates to vest jurisdiction upon the The test as to whether a defendant is prejudiced by the
trial court is likewise impermissible.52 amendment is whether a defense under the information
as it originally stood would be available after the

36
amendment is made, and whether any evidence circumstances were made known to him as early as the
defendant might have would be equally applicable to the first motion.
information in the one form as in the other. An amendment
to an information which does not change the nature of the Petitioner did not, however, make much of the opportunity
crime alleged therein does not affect the essence of the to present countervailing evidence on the proposed
offense or cause surprise or deprive the accused of an amended charge. Despite notice of hearing, petitioner
opportunity to meet the new averment had each been opted to merely observe the proceedings and declined to
held to be one of form and not of substance.55 (emphasis actively participate, even with extreme caution, in the
and underscoring supplied) reinvestigation. Mercado v. Court of Appeals states that
the rules do not even require, as a condition sine qua non
Matalam adds that the mere fact that the two charges to the validity of a preliminary investigation, the presence
are related does not necessarily or automatically deprive of the respondent as long as efforts to reach him were
the accused of his right to another preliminary made and an opportunity to controvert the complainant’s
investigation. Notatu dignum is the fact that both the evidence was accorded him.62
original Information and the amended Information in
Matalam were similarly charging the accused with In his second assignment of error, petitioner basically
violation of Section 3(e) of the Anti-Graft and Corrupt assails the hurried issuance of the last two assailed RTC
Practices Act. Orders despite the pendency before the appellate court
of the petition for certiorari challenging the first two trial
In one case,56 it was squarely held that the amendment court Orders allowing a reinvestigation.
of the Information from homicide to murder is "one of
substance with very serious consequences."57 The The Rules categorically state that the petition shall not
amendment involved in the present case consists of interrupt the course of the principal case unless a
additional averments of the circumstances of treachery, temporary retraining order or a writ of preliminary
evident premeditation, and cruelty, which qualify the injunction has been issued.63 The appellate court, by
offense charged from homicide to murder. It being a new Resolution of February 15, 2007,64 denied petitioner’s
and material element of the offense, petitioner should be application for a temporary restraining order and writ of
given the chance to adduce evidence on the matter. Not preliminary injunction. Supplementary efforts to seek
being merely clarificatory, the amendment essentially injunctive reliefs proved futile.65 The appellate court thus
varies the prosecution’s original theory of the case and did not err in finding no grave abuse of discretion on the
certainly affects not just the form but the weight of defense part of the trial court when it proceeded with the case and
to be mustered by petitioner. eventually arraigned the accused on March 21, 2007,
there being no injunction order from the appellate court.
The Court distinguishes the factual milieus in Buhat v. CA58 Moreover, petitioner opted to forego appealing to the
and Pacoy v. Cajigal,59 wherein the amendment of the DOJ Secretary, a post-inquest remedy that was available
caption of the Information from homicide to murder was after the reinvestigation and which could have suspended
not considered substantial because there was no real the arraignment.661avvphi1
change in the recital of facts constituting the offense
charged as alleged in the body of the Information, as the Regarding petitioner’s protestations of haste, suffice to
allegations of qualifying circumstances were already state that the pace in resolving incidents of the case is not
clearly embedded in the original Information. Buhat per se an indication of bias. In Santos-Concio v.
pointed out that the original Information for homicide Department of Justice,67 the Court held:
already alleged the use of superior strength, while Pacoy
states that the averments in the amended Information for Speed in the conduct of proceedings by a judicial or
murder are exactly the same as those already alleged in quasi-judicial officer cannot per se be instantly attributed
the original Information for homicide. None of these to an injudicious performance of functions. For one’s
peculiar circumstances obtains in the present case. prompt dispatch may be another’s undue haste. The
orderly administration of justice remains as the paramount
Considering that another or a new preliminary and constant consideration, with particular regard of the
investigation is required, the fact that what was circumstances peculiar to each case.
conducted in the present case was a reinvestigation does
not invalidate the substantial amendment of the The presumption of regularity includes the public officer’s
Information. There is no substantial distinction between a official actuations in all phases of work. Consistent with
preliminary investigation and a reinvestigation since both such presumption, it was incumbent upon petitioners to
are conducted in the same manner and for the same present contradictory evidence other than a mere tallying
objective of determining whether there exists sufficient of days or numerical calculation. This, petitioners failed to
ground to engender a well-founded belief that a crime discharge. The swift completion of the Investigating
has been committed and the respondent is probably Panel’s initial task cannot be relegated as shoddy or shady
guilty thereof and should be held for trial.60 What is without discounting the presumably regular performance
essential is that petitioner was placed on guard to defend of not just one but five state prosecutors.68
himself from the charge of murder61 after the claimed

37
There is no ground for petitioner’s protestations against the
DOJ Secretary’s sudden designation of Senior State There are two kinds of determination of probable cause:
Prosecutor Emmanuel Velasco as Acting City Prosecutor of executive and judicial. The executive determination of
Makati City for the present case69 and the latter’s probable cause is one made during preliminary
conformity to the motion for reinvestigation. investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to
In granting the reinvestigation, Judge Alameda cannot determine whether probable cause exists and to charge
choose the public prosecutor who will conduct the those whom he believes to have committed the crime as
reinvestigation or preliminary investigation.70 There is a defined by law and thus should be held for trial. Otherwise
hierarchy of officials in the prosecutory arm of the stated, such official has the quasi-judicial authority to
executive branch headed by the Secretary of Justice71 determine whether or not a criminal case must be filed in
who is vested with the prerogative to appoint a special court. Whether that function has been correctly
prosecutor or designate an acting prosecutor to handle a discharged by the public prosecutor, i.e., whether he has
particular case, which broad power of control has been made a correct ascertainment of the existence of
recognized by jurisprudence.72 probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.77
As for the trial court’s ignoring the DOJ Secretary’s
uncontested statements to the media which aired his The judicial determination of probable cause is one made
opinion that if the assailant merely intended to maim and by the judge to ascertain whether a warrant of arrest
not to kill the victim, one bullet would have sufficed — the should be issued against the accused. The judge must
DOJ Secretary reportedly uttered that "the filing of the satisfy himself that based on the evidence submitted,
case of homicide against ano against Leviste lintek naman there is necessity for placing the accused under custody
eh I told you to watch over that case… there should be a in order not to frustrate the ends of justice. If the judge finds
report about the ballistics, about the paraffin, etc., then no probable cause, the judge cannot be forced to issue
that’s not a complete investigation, that’s why you should the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112
use that as a ground" — no abuse of discretion, much less of the Rules of Court outlines the procedure to be followed
a grave one, can be imputed to it. by the RTC.

The statements of the DOJ Secretary do not evince a To move the court to conduct a judicial determination of
"determination to file the Information even in the absence probable cause is a mere superfluity, for with or without
of probable cause."73 On the contrary, the remarks merely such motion, the judge is duty-bound to personally
underscored the importance of securing basic evaluate the resolution of the public prosecutor and the
investigative reports to support a finding of probable supporting evidence. In fact, the task of the presiding
cause. The original Resolution even recognized that judge when the Information is filed with the court is first and
probable cause for the crime of murder cannot be foremost to determine the existence or non-existence of
determined based on the evidence obtained "[u]nless probable cause for the arrest of the accused.80
and until a more thorough investigation is conducted and
eyewitness/es [is/]are presented in evidence[.]"74 What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself
The trial court concluded that "the wound sustained by the of the existence of probable cause. But the judge is not
victim at the back of his head, the absence of paraffin test required to personally examine the complainant and his
and ballistic examination, and the handling of physical witnesses. Following established doctrine and procedure,
evidence,"75 as rationalized by the prosecution in its he shall (1) personally evaluate the report and the
motion, are sufficient circumstances that require further supporting documents submitted by the prosecutor
inquiry. regarding the existence of probable cause, and on the
basis thereof, he may already make a personal
That the evidence of guilt was not strong as subsequently determination of the existence of probable cause; and (2)
assessed in the bail hearings does not affect the prior if he is not satisfied that probable cause exists, he may
determination of probable cause because, as the disregard the prosecutor’s report and require the
appellate court correctly stated, the standard of strong submission of supporting affidavits of witnesses to aid him
evidence of guilt which is sufficient to deny bail to an in arriving at a conclusion as to the existence of probable
accused is markedly higher than the standard of judicial cause.81 (emphasis and underscoring supplied)
probable cause which is sufficient to initiate a criminal
case.76 The rules do not require cases to be set for hearing to
determine probable cause for the issuance of a warrant of
In his third assignment of error, petitioner faults the trial arrest of the accused before any warrant may be
court for not conducting, at the very least, a hearing for issued.82 Petitioner thus cannot, as a matter of right, insist
judicial determination of probable cause, considering the on a hearing for judicial determination of probable cause.
lack of substantial or material new evidence adduced Certainly, petitioner "cannot determine beforehand how
during the reinvestigation. cursory or exhaustive the [judge's] examination of the
records should be [since t]he extent of the judge’s
Petitioner’s argument is specious. examination depends on the exercise of his sound

38
discretion as the circumstances of the case require."83 In G.R. No. 199082 September 18, 2012
one case, the Court emphatically stated:
JOSE MIGUEL T. ARROYO, Petitioner,
The periods provided in the Revised Rules of Criminal
vs.
Procedure are mandatory, and as such, the judge must
determine the presence or absence of probable cause
DEPARTMENT OF JUSTICE; COMMISSION ON
within such periods. The Sandiganbayan’s determination ELECTIONS; HON. LEILA DE LIMA, in her capacity as
of probable cause is made ex parte and is summary in Secretary of the Department of Justice; HON. SIXTO
nature, not adversarial. The Judge should not be stymied BRILLANTES, .JR., in his capacity as Chairperson of the
and distracted from his determination of probable cause Commission on Elections; and the JOINT DOJ-
by needless motions for determination of probable cause COMELEC PRELIMINARY INVESTIGATION COMMITTEE
filed by the accused.84 (emphasis and underscoring and FACT-FINDING TEAM, Respondents.
supplied)
x-----------------------x
Petitioner proceeds to discuss at length evidentiary
matters, arguing that no circumstances exist that would
qualify the crime from homicide to murder. G.R. No. 199085

The allegation of lack of substantial or material new BENJAMIN S. ABALOS, SR., Petitioner,
evidence deserves no credence, because new pieces of vs.
evidence are not prerequisites for a valid conduct of HON. LEILA DE LIMA, in her capacity as Secretary of
reinvestigation. It is not material that no new matter or Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity
evidence was presented during the reinvestigation of the as COMELEC Chairperson; RENE V. SARMIENTO,
case. It should be stressed that reinvestigation, as the word
LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
itself implies, is merely a repeat investigation of the case.
New matters or evidence are not prerequisites for a
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C.
reinvestigation, which is simply a chance for the LAGMAN, in their capacity as COMELEC
prosecutor to review and re-evaluate its findings and the COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C.
evidence already submitted.85 DEE, JACINTO G. ANG, ROMEO B. FORTES AND
MICHAEL D. VILLARET, in their capacity as
Moreover, under Rule 45 of the Rules of Court, only CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
questions of law may be raised in, and be subject of, a JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
petition for review on certiorari since this Court is not a trier COMMITEE ON THE 2004 AND 2007 ELECTION FRAUD,
of facts. The Court cannot thus review the evidence
Respondents.
adduced by the parties on the issue of the absence or
presence of probable cause, as there exists no
exceptional circumstances to warrant a factual review.86 x-----------------------x

In a petition for certiorari, like that filed by petitioner before G.R. No.199118
the appellate court, the jurisdiction of the court is narrow
in scope. It is limited to resolving only errors of GLORIA MACAPAGAL-ARROYO, Petitioner,
jurisdiction.1avvphi1 It is not to stray at will and resolve vs.
questions and issues beyond its competence, such as an COMMISSION ON ELECTIONS, represented by
error of judgment.87 The court’s duty in the pertinent case
Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF
is confined to determining whether the executive and
judicial determination of probable cause was done
JUSTICE, represented by Secretary Leila M. De Lima,
without or in excess of jurisdiction or with grave abuse of JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
discretion. Although it is possible that error may be COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and
committed in the discharge of lawful functions, this does DOJ-COMELEC FACT FINDING TEAM, Respondents.
not render the act amenable to correction and
annulment by the extraordinary remedy of certiorari, DECISION
absent any showing of grave abuse of discretion
amounting to excess of jurisdiction.88 PERALTA, J.:

WHEREFORE, the petition is DENIED. The assailed Decision The Court is vested with the constitutional mandate to
and Resolution of the Court of Appeals in CA-G.R. SP No. resolve justiciable controversies by applying the rule of law
97761 are AFFIRMED. with due deference to the right to due process,
irrespective of the standing in society of the parties
SO ORDERED. 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.

39
by the Comelec in accordance with the Comelec Rules of
Before the Court are three (3) consolidated petitions and Procedure. For other offenses, or those not covered by the
supplemental petitions for Certiorari and Prohibition under Omnibus Election Code and other election laws, the
Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo corresponding criminal information may be filed directly
(Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr. with the appropriate courts.7
(Abalos) in G.R. No. 199085 and Gloria Macapagal
The Fact-Finding Team,8 on the other hand, was created
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) for the purpose of gathering real, documentary, and
Commission on Elections (Comelec) Resolution No. 9266 "In testimonial evidence which can be utilized in the
the Matter of the Commission on Elections and preliminary investigation to be conducted by the Joint
Department of Justice Joint Investigation on the Alleged Committee. Its specific duties and functions as
Election Offenses Committed during the 2004 and 2007 enumerated in Section 4 of the Joint Order are as follows:
Elections Pursuant to Law"1 dated August 2, 2011; (2) Joint
Order No. 001-2011 (Joint Order) "Creating and a) Gather and document reports, intelligence information,
Constituting a Joint DOJ-Comelec Preliminary and investigative leads from official as well as unofficial
Investigation Committee [Joint Committee] and Fact- sources and informants;
Finding Team on the 2004 and 2007 National Elections
Electoral Fraud and b) Conduct interviews, record testimonies, take affidavits
of witnesses, and collate material and relevant
Manipulation Cases"2 dated August 15, 2011; (3) Rules of documentary evidence, such as, but not limited to,
Procedure on the Conduct of Preliminary Investigation on election documents used in the 2004 and 2007 national
the Alleged Election Fraud in the 2004 and 2007 National elections. For security reasons, or to protect the identities
Elections (Joint Committee Rules of Procedure)3 dated of informants, the Fact-Finding Team may conduct
August 23, 2011; and (4) Initial Report of the Fact-Finding interviews or document testimonies discreetly;
Team dated October 20, 2011.4 The consolidated petitions
and supplemental petitions likewise assail the validity of c) Assess and evaluate affidavits already executed and
the proceedings undertaken pursuant to the aforesaid other documentary evidence submitted or may be
issuances. submitted to the Fact-Finding Team and/or Committee;

The Antecedents d) Identify the offenders, their offenses and the manner of
their commission, individually or in conspiracy, and the
Acting on the discovery of alleged new evidence and the provisions of election and general criminal laws violated,
surfacing of new witnesses indicating the occurrence of establish evidence for individual criminal and
massive electoral fraud and manipulation of election administrative liability and prosecution, and prepare the
results in the 2004 and 2007 National Elections, on August necessary documentation, such as complaints and
2, 2011, the Comelec issued Resolution No. 9266 approving charge sheets for the initiation of preliminary investigation
the creation of a committee jointly with the Department of proceedings against said individuals to be conducted by
Justice (DOJ), which shall conduct preliminary the Committee;
investigation on the alleged election offenses and
anomalies committed during the 2004 and 2007 e) Regularly submit to the Committee, the Secretary of
elections.5 Justice and the Chairman of the Comelec periodic reports
and recommendations, supported by real, testimonial and
On August 4, 2011, the Secretary of Justice issued documentary evidence, which may then serve as the
Department Order No. 6406 naming three (3) of its Committee’s basis for immediately commencing
prosecutors to the Joint Committee. appropriate preliminary investigation proceedings, as
provided under Section 6 of this Joint Order; and
On August 15, 2011, the Comelec and the DOJ issued Joint
Order No. 001-2011 creating and constituting a Joint f) Upon the termination of its investigation, make a full and
Committee and Fact-Finding Team on the 2004 and 2007 final report to the Committee, the Secretary of Justice, and
National Elections electoral fraud and manipulation cases. the Chairman of the Comelec.9
The Joint Committee and the Fact-Finding Team are
composed of officials from the DOJ and the Comelec. Pursuant to Section 710 of the Joint Order, on August 23,
Section 2 of the Joint Order lays down the mandate of the 2011, the Joint Committee promulgated its Rules of
Joint Committee, to wit: Procedure.

Section 2. Mandate. – The Committee shall conduct the The members of the Fact-Finding Team unanimously
necessary preliminary investigation on the basis of the agreed that the subject of the Initial Report would be the
evidence gathered and the charges recommended by electoral fraud and manipulation of election results
the Fact-Finding Team created and referred to in Section allegedly committed during the May 14, 2007 elections.
4 hereof. Resolutions finding probable cause for election Thus, in its Initial Report11 dated October 20, 2011, the
offenses, defined and penalized under the Omnibus Fact-Finding Team concluded that manipulation of the
Election Code and other election laws shall be approved results in the May 14, 2007 senatorial elections in the

40
provinces of North and South Cotabato and On November 16, 2011, the Joint Committee promulgated
Maguindanao were indeed perpetrated.12 The Fact- a Joint Resolution which was later indorsed to the
Finding Team recommended that petitioner Abalos and Comelec.31 On November 18, 2011, after conducting a
ten (10) others13 be subjected to preliminary investigation special session, the Comelec en banc issued a
for electoral sabotage for conspiring to manipulate the Resolution32 approving and adopting the Joint Resolution
election results in North and South Cotabato. Twenty-six subject to modifications. The dispositive portion of the
(26)14 persons, including petitioners GMA and Abalos, Comelec Resolution reads:
were likewise recommended for preliminary investigation
for electoral sabotage for manipulating the election results WHEREFORE, premises considered, the Resolution of the
in Maguindanao.15 Several persons were also Joint DOJ-COMELEC Preliminary Investigation Committee
recommended to be charged administratively, while in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC
others,16 including petitioner Mike Arroyo, were Case No. 002-2011, upon the recommendation of the
recommended to be subjected to further investigation.17 COMELEC’s own representatives in the Committee, is
The case resulting from the investigation of the Fact- hereby APPROVED and ADOPTED, subject to the following
Finding Team was docketed as DOJ-Comelec Case No. MODIFICATIONS:
001-2011.
1. That information/s for the crime of ELECTORAL
Meanwhile, on October 17, 2011, Senator Aquilino SABOTAGE under Section 42 (b) of R.A. 9369, amending
Pimentel III (Senator Pimentel) filed a Complaint- Section 27 (b) of R.A. 6646, be filed against GLORIA
Affidavit18 for Electoral Sabotage against petitioners and MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR., LINTANG
twelve others19 and several John Does and Jane Does. H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER REYES;
The case was docketed as DOJ-Comelec Case No. 002-
2011. 2. That the charges against MICHAEL C. ABAS, NICODEMO
FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be
On October 24, 2011, the Joint Committee issued two subjected to further investigation;
subpoenas against petitioners in DOJ-Comelec Case Nos.
001-2011 and 002-2011.20 On November 3, 2011, 3. That the charges against JOSE MIGUEL T. ARROYO,
petitioners, through counsel, appeared before the Joint BONG SERRANO, ALBERTO AGRA, ANDREI BON TAGUM,
Committee.21 On that preliminary hearing, the Joint GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN
Committee consolidated the two DOJ-Comelec cases. DOE a.k.a BUTCH, be DISMISSED for insufficiency of
Respondents therein were likewise ordered to submit their evidence to establish probable cause;
Counter-Affidavits by November 14, 2011.22
4. That the recommendation that ESTELITA B. ORBASE, ELIZA
Thereafter, petitioners filed before the Court separate A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY
Petitions for Certiorari and Prohibition with Prayer for the B. MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN,
Issuance of a Temporary Restraining Order (TRO) and/or SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION
Writ of Preliminary Injunction assailing the creation of the CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN L.
Joint Panel.23 The petitions were eventually consolidated. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S.
NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA
On November 14, 2011, petitioner Mike Arroyo filed a ROAN M. DALOPE, and MACEDA L. ABO be
Motion to Defer Proceedings24 before the Joint administratively charged be subjected to further review by
Committee, in view of the pendency of his petition before this Commission to determine the appropriate charge/s
the Court. On the same day, petitioner GMA filed before that may be filed against them;
the Joint Committee an Omnibus Motion Ad Cautelam25
to require Senator Pimentel to furnish her with documents 5. That the findings of lack of probable cause against
referred to in his complaint-affidavit and for the LILIAN S. SUAN-RADAM and YOGIE G. MARTIRIZAR be
production of election documents as basis for the charge REJECTED by reason of the pendency of their respective
of electoral sabotage. GMA contended that for the crime cases before the Regional Trial Court of Pasay (Branch 114)
of electoral sabotage to be established, there is a need to and this Commission for the same offense under
present election documents allegedly tampered which consideration.
resulted in the increase or decrease in the number of votes
of local and national candidates.26 GMA prayed that she In the higher interest of justice and by reason of manifest
be allowed to file her counter-affidavit within ten (10) days attempts to frustrate the government’s right to prosecute
from receipt of the requested documents.27 Petitioner and to obtain speedy disposition of the present case
Abalos, for his part, filed a Motion to Suspend Proceedings pending before the Commission, the Law Department
(Ex Abundante Ad Cautelam),28 in view of the pendency and/or any COMELEC legal officers as may be authorized
of his petition brought before the Court. by this Commission is hereby ORDERED to IMMEDIATELY
PREPARE and FILE the necessary Information/s before the
In an Order29 dated November 15, 2011, the Joint appropriate court/s
Committee denied the aforesaid motions of petitioners.
GMA subsequently filed a motion for reconsideration.30 SO ORDERED.33 (Emphasis supplied.)

41
On even date, pursuant to the above Resolution, the PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
Comelec’s Law Department filed with the Regional Trial TRIBUNAL.
Court (RTC), Pasay City, an Information against petitioner
GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY
Bedol, for violation of Section 42 (b)(3) of Republic Act CITY, HAVE ASSUMED JURISDICTION OVER THE SUBJECT
(R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646, MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT
docketed as Criminal Case No. RPSY-11-04432-CR.34 The COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING
case was raffled to Branch 112 and the corresponding THE JOINT COMMITTEE.38
Warrant of Arrest was issued which was served on GMA on
the same day.35 In G.R. No. 199085, petitioner Abalos raises the following
issues:
On November 18, 2011, petitioner GMA filed with the RTC
an Urgent Omnibus Motion Ad Cautelam36 with leave to I.
allow the Joint Committee to resolve the motion for
reconsideration filed by GMA, to defer issuance of a DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT
warrant of arrest and a Hold Departure Order, and to DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY
proceed to judicial determination of probable cause. She, INVESTIGATON COMMITTEE VIOLATE PETITIONER’S
likewise, filed with the Comelec a Motion to Vacate Ad CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE
Cautelam37 praying that its Resolution be vacated for LAW?
being null and void. The RTC nonetheless issued a warrant
for her arrest which was duly served. GMA thereafter filed II.
a Motion for Bail which was granted.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-
Issues COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE VIOLATE PETITIONER’S
In G.R. No. 199082, petitioner Arroyo relies on the following CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
grounds:
III.
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN SEPARATION OF POWERS BY CREATING THE JOINT DOJ-
CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING COMELEC FACT-FINDING TEAM AND PRELIMINARY
AND PROSECUTING CERTAIN PERSONS AND INCIDENTS INVESTIGATION COMMITTEE WHICH ENCROACHED UPON
ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 THE POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL
ELECTIONS TO THE EXCLUSION OF OTHERS, IN VIOLATION OF COURT?
THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND
COMPANION CASE. IV.

B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
CONDUCT PRELIMINARY INVESTIGATION. PRELIMINARY INVESTIGATION COMMITTEE HAVE THE
POWER AND LEGAL AUTHORITY TO CONDUCT A
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL
THE COMMISSION ON ELECTIONS - A CONSTITUTIONALLY SABOTAGE CASES WHICH THE COMELEC HAD ALREADY
INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE – TAKEN COGNIZANCE OF?39
A POLITICAL AGENT OF THE EXECUTIVE – DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS In G.R. No. 199118, petitioner GMA anchors her petition on
PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) the following grounds:
OF THE CONSTITUTION.
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS
PRONOUNCEMENTS OF THE PRESIDENT, HIS ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT COMELEC.
CASES SHOULD BE FILED AGAINST PETITIONER AND HIS
FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011, II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF
AND RELATED CASES. ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND
E. THE CREATION AND CONSTITUTION OF THE JOINT MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987
COMMITTEE TRAMPLES UPON PETITIONER’S RIGHT TO A FAIR CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN

42
FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH speculative and anticipatory.45 As to the GMA petition,
RESPONDENT JUSTICE SECRETARY DE LIMA. respondents aver that any judgment of the Court will have
no practical legal effect because an Information has
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE already been filed against her in Branch 112, RTC of Pasay
JOINT COMMITTEE RULES HAVE NOT BEEN PUBLISHED City.46 With the filing of the Information, the RTC has
PURSUANT TO TAÑADA V. TUVERA, G.R. No. L-63915 (29 already acquired jurisdiction over the case, including all
DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT issues relating to the constitutionality or legality of her
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL preliminary investigation.47 Respondents also claim that
PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL the issues relating to the constitutionality and validity of the
2008), (SIC)40 conduct of the preliminary investigation of GMA are best
left to the trial court, considering that it involves questions
We deferred the resolution of petitioners’ Motion for the of fact.48 Respondents add that considering that the RTC
Issuance of a TRO and, instead, required the respondents has concurrent jurisdiction to determine a constitutional
to comment on the petitions.41 issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49
We likewise scheduled the consolidated cases for oral
argument for which the parties were directed to limit their We do not agree.
respective discussions to the following issues:
Mootness
I. Whether or not Joint Order No. 001-2011 "Creating and
Constituting a Joint DOJ-COMELEC Preliminary It cannot be gainsaid that for a court to exercise its power
Investigation Committee and Fact-Finding Team on the of adjudication, there must be an actual case or
2004 and 2007 National Elections Electoral Fraud and controversy, that is, one which involves a conflict of legal
Manipulation Cases" is constitutional in light of the rights, an assertion of opposite legal claims susceptible of
following: judicial resolution.50 The case must not be moot or
academic or based on extra-legal or other similar
A. The due process clause of the 1987 Constitution considerations not cognizable by a court of justice.51

B. The equal protection clause of the 1987 Constitution A case becomes moot and academic when it ceases to
present a justiciable controversy so that a declaration on
C. The principle of separation of powers the issue would be of no practical use or value.52
However, a case should not be dismissed simply because
D. The independence of the COMELEC as a constitutional one of the issues raised therein had become moot and
body academic by the onset of a supervening event, whether
intended or incidental, if there are other causes which
II. Whether or not the COMELEC has jurisdiction under the need to be resolved after trial.53
law to conduct preliminary investigation jointly with the
DOJ. Here, the consolidated cases are not rendered moot and
academic by the promulgation of the Joint Resolution by
A. Whether or not due process was observed by the Joint the Joint Committee and the approval thereof by the
DOJ-COMELEC Fact-Finding Team and Preliminary Comelec. It must be recalled that the main issues in the
Investigation Committee, and the COMELEC in the three petitions before us are the constitutionality and
conduct of the preliminary investigation and approval of legality of the creation of the Joint Committee and the
the Joint Panel’s Resolution.42 Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically
The Court, thereafter, required the parties to submit their provides that the Joint Committee was created for
respective Memoranda.43 purposes of investigating the alleged massive electoral
fraud during the 2004 and 2007 national elections.
The Court’s Ruling However, in the Fact-Finding Team’s Initial Report, the
team specifically agreed that the report would focus on
Procedural Issues the irregularities during the 2007 elections. Also, in its
November 18, 2011 Resolution, the Comelec, while
Respondents claim that Mike Arroyo’s petition is moot and directing the filing of information against petitioners Abalos
that of GMA is moot and academic. They explain that the and GMA, ordered that further investigations be
Mike Arroyo petition presents no actual controversy that conducted against the other respondents therein.
necessitates the exercise by the Court of its power of Apparently, the Fact-Finding Team’s and Joint
judicial review, considering that he was not among those
indicted for electoral sabotage in the 2007 national Committee’s respective mandates have not been fulfilled
elections as the Comelec dismissed the case against him and they are, therefore, bound to continue discharging
for insufficiency of evidence.44 Anent the 2004 national their duties set forth in the assailed Joint Order. Moreover,
elections, the Fact-Finding Team is yet to complete its petitioners question the validity of the proceedings
investigation so Mike Arroyo’s apprehensions are merely undertaken by the Fact-Finding Team and the Joint

43
Committee leading to the filing of information, on exercise only appellate jurisdiction over cases involving the
constitutional grounds. We are not, therefore, barred from constitutionality of a statute, treaty or regulation.
deciding on the petitions simply by the occurrence of the
supervening events of filing an information and dismissal of However, such rule is subject to exception, that is, in
the charges. circumstances where the Court believes that resolving the
issue of constitutionality of a law or regulation at the first
Jurisdiction over the validity of the instance is of paramount importance and immediately
conduct of the preliminary investigation affects the social, economic, and moral well-being of the
people.60
This is not the first time that the Court is confronted with the
issue of jurisdiction to conduct preliminary investigation This case falls within the exception. An expeditious
and at the same time with the propriety of the conduct of resolution of the issues raised in the petitions is necessary.
preliminary investigation. In Cojuangco, Jr. v. Presidential Besides, the Court has entertained a direct resort to the
Commission on Good Government (PCGG),54 the Court Court without the requisite motion for reconsideration filed
resolved two issues, namely: (1) whether or not the PCGG below or without exhaustion of administrative remedies
has the power to conduct a preliminary investigation of where there is an urgent necessity for the resolution of the
the anti-graft and corruption cases filed by the Solicitor question and any further delay would prejudice the
General against Eduardo Conjuangco, Jr. and other interests of the government or of the petitioners and when
respondents for the alleged misuse of coconut levy funds; there is an alleged violation of due process, as in the
and (2) on the assumption that it has jurisdiction to present case.61 We apply the same relaxation of the Rules
conduct such a preliminary investigation, whether or not in the present case and, thus, entertain direct resort to this
its conduct constitutes a violation of petitioner’s right to Court.
due process and equal protection of the law.55 The Court
decided these issues notwithstanding the fact that Substantive Issues
Informations had already been filed with the trial court. Bases for the Creation of the
Fact-Finding Team and Joint Committee
In Allado v. Diokno,56 in a petition for certiorari assailing
the propriety of the issuance of a warrant of arrest, the Section 2, Article IX-C of the 1987 Constitution enumerates
Court could not ignore the undue haste in the filing of the the powers and functions of the Comelec. Paragraph (6)
information and the inordinate interest of the government thereof vests in the Comelec the power to:
in filing the same. Thus, this Court took time to determine
whether or not there was, indeed, probable cause to (6) File, upon a verified complaint, or on its own initiative,
warrant the filing of information. This, notwithstanding the petitions in court for inclusion or exclusion of voters;
fact that information had been filed and a warrant of investigate and, where appropriate, prosecute cases of
arrest had been issued. Petitioners therein came directly to violations of election laws, including acts or omissions
this Court and sought relief to rectify the injustice that they constituting election frauds, offenses, and malpractices.
suffered.
This was an important innovation introduced by the 1987
Hierarchy of courts Constitution, because the above-quoted provision was
not in the 1935 and 1973 Constitutions.62
Neither can the petitions be dismissed solely because of
violation of the principle of hierarchy of courts. This The grant to the Comelec of the power to investigate and
principle requires that recourse must first be made to the prosecute election offenses as an adjunct to the
lower-ranked court exercising concurrent jurisdiction with enforcement and administration of all election laws is
a higher court.57 The Supreme Court has original intended to enable the Comelec to effectively insure to
jurisdiction over petitions for certiorari, prohibition, the people the free, orderly, and honest conduct of
mandamus, quo warranto, and habeas corpus. While this elections. The failure of the Comelec to exercise this power
jurisdiction is shared with the Court of Appeals and the could result in the frustration of the true will of the people
RTC, a direct invocation of this Court’s jurisdiction is and make a mere idle ceremony of the sacred right and
allowed when there are special and important reasons duty of every qualified citizen to vote.63
therefor, clearly and especially set out in the petition, as in
the present case.58 In the consolidated petitions, The constitutional grant of prosecutorial power in the
petitioners invoke exemption from the observance of the Comelec was reflected in Section 265 of Batas Pambansa
rule on hierarchy of courts in keeping with the Court’s duty Blg. 881, otherwise known as the Omnibus Election Code,
to determine whether or not the other branches of to wit:
government have kept themselves within the limits of the
Constitution and the laws, and that they have not abused Section 265. Prosecution. The Commission shall, through its
the discretion given to them.59 duly authorized legal officers, have the exclusive power to
conduct preliminary investigation of all election offenses
It is noteworthy that the consolidated petitions assail the punishable under this Code, and to prosecute the same.
constitutionality of issuances and resolutions of the DOJ The Commission may avail of the assistance of other
and the Comelec. The general rule is that this Court shall prosecuting arms of the government: Provided, however,

44
That in the event that the Commission fails to act on any the Comelec to conduct preliminary investigation of all
complaint within four months from his filing, the election offenses and to prosecute the same.
complainant may file the complaint with the office of the
fiscal [public prosecutor], or with the Ministry Department It is, therefore, not only the power but the duty of both the
of Justice for proper investigation and prosecution, if Comelec and the DOJ to perform any act necessary to
warranted. ensure the prompt and fair investigation and prosecution
of election offenses. Pursuant to the above constitutional
Under the above provision of law, the power to conduct and statutory provisions, and as will be explained further
preliminary investigation is vested exclusively with the below, we find no impediment for the Comelec and the
Comelec. The latter, however, was given by the same DOJ to create the Joint Committee and Fact-Finding
provision of law the authority to avail itself of the assistance Team for the purpose of conducting a thorough
of other prosecuting arms of the government.64 Thus, investigation of the alleged massive electoral fraud and
under Section 2,65 Rule 34 of the Comelec Rules of the manipulation of election results in the 2004 and 2007
Procedure, provincial and city prosecutors and their national elections relating in particular to the presidential
assistants are given continuing authority as deputies to and senatorial elections.73
conduct preliminary investigation of complaints involving
election offenses under election laws and to prosecute the Constitutionality of Joint-Order No. 001-2011
same. The complaints may be filed directly with them or
may be indorsed to them by the petitioner or its duly A. Equal Protection Clause
authorized representatives.66
Petitioners claim that the creation of the Joint Committee
Thus, under the Omnibus Election Code, while the and Fact-Finding Team is in violation of the equal
exclusive jurisdiction to conduct preliminary investigation protection clause of the Constitution because its sole
had been lodged with the Comelec, the prosecutors had purpose is the investigation and prosecution of certain
been conducting preliminary investigations pursuant to persons and incidents. They argue that there is no
the continuing delegated authority given by the substantial distinction between the allegations of massive
Comelec. The reason for this delegation of authority has electoral fraud in 2004 and 2007, on the one hand, and
been explained in Commission on Elections v. Español:67 previous and subsequent national elections, on the other
hand; and no substantial distinction between petitioners
The deputation of the Provincial and City Prosecutors is and the other persons or public officials who might have
necessitated by the need for prompt investigation and been involved in previous election offenses. They insist that
dispensation of election cases as an indispensable part of the Joint Panel was created to target only the Arroyo
the task of securing fine, orderly, honest, peaceful and Administration as well as public officials linked to the
credible elections. Enfeebled by lack of funds and the Arroyo Administration. To bolster their claim, petitioners
magnitude of its workload, the petitioner does not have a explain that Joint Order No. 001-2011 is similar to Executive
sufficient number of legal officers to conduct such Order No. 1 (creating the Philippine Truth Commission)
investigation and to prosecute such cases.68 which this Court had already nullified for being

Moreover, as we acknowledged in People v. Basilla,69 the violative of the equal protection clause.
prompt and fair investigation and prosecution of election
offenses committed before or in the course of nationwide Respondents, however, refute the above contentions and
elections would simply not be possible without the argue that the wide array of the possible election offenses
assistance of provincial and city fiscals prosecutors and and broad spectrum of individuals who may have
their assistants and staff members, and of the state committed them, if any, immediately negate the assertion
prosecutors of the DOJ.70 that the assailed orders are aimed only at the officials of
the Arroyo Administration.
Section 265 of the Omnibus Election Code was amended
by Section 43 of R.A. No. 9369,71 which reads: We agree with the respondents.

Section 43. Section 265 of Batas Pambansa Blg. 881 is The equal protection clause is enshrined in Section 1,
hereby amended to read as follows: Article III of the Constitution which reads:

SEC. 265. Prosecution. – The Commission shall, through its Section 1. No person shall be deprived of life, liberty, or
duly authorized legal officers, have the power, concurrent property without due process of law, nor shall any person
with the other prosecuting arms of the government, to be denied the equal protection of the laws.74
conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same.72 The concept of equal protection has been laid down in
Biraogo v. Philippine Truth Commission of 2010:75
As clearly set forth above, instead of a mere delegated
authority, the other prosecuting arms of the government, One of the basic principles on which this government was
such as the DOJ, now exercise concurrent jurisdiction with founded is that of the equality of right which is embodied
in Section 1, Article III of the 1987 Constitution. The equal

45
protection of the laws is embraced in the concept of due granted such latitude, its varying treatment of similarly
process, as every unfair discrimination offends the situated investigations cannot by itself be considered a
requirements of justice and fair play. It has been violation of any of the parties’ rights to the equal
embodied in a separate clause, however, to provide for a protection of the laws.79 This same doctrine should likewise
more specific guaranty against any form of undue apply in the present case.
favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due Thus, as the constitutional body granted with the broad
process clause. But if the particular act assailed partakes power of enforcing and administering all laws and
of an unwarranted partiality or prejudice, the sharper regulations relative to the conduct of an election,
weapon to cut it down is the equal protection clause. plebiscite, initiative, referendum and recall,80 and tasked
to ensure free, orderly, honest, peaceful, and credible
According to a long line of decisions, equal protection elections,81 the Comelec has the authority to determine
simply requires that all persons or things similarly situated how best to perform such constitutional mandate.
should be treated alike, both as to rights conferred and Pursuant to this authority, the Comelec issues various
responsibilities imposed. It requires public bodies and resolutions prior to every local or national elections setting
institutions to treat similarly-situated individuals in a similar forth the guidelines to be observed in the conduct of the
manner. The purpose of the equal protection clause is to elections. This shows that every election is distinct and
secure every person within a state's jurisdiction against requires different guidelines in order to ensure that the rules
intentional and arbitrary discrimination, whether are updated to respond to existing circumstances.
occasioned by the express terms of a statute or by its
improper execution through the state's duly-constituted Moreover, as has been practiced in the past, complaints
authorities. In other words, the concept of equal justice for violations of election laws may be filed either with the
under the law requires the state to govern impartially, and Comelec or with the DOJ. The Comelec may even initiate,
it may not draw distinctions between individuals solely on motu proprio, complaints for election offenses.82
differences that are irrelevant to a legitimate
governmental objective.76 Pursuant to law and the Comelec’s own Rules,
investigations may be conducted either by the Comelec
Unlike the matter addressed by the Court’s ruling in itself through its law department or through the
Biraogo v. Philippine Truth Commission of 2010, Joint Order prosecutors of the DOJ. These varying procedures and
No. 001-2011 cannot be nullified on the ground that it treatment do not, however, mean that respondents are
singles out the officials of the Arroyo Administration and, not treated alike. Thus, petitioners’ insistence of
therefore, it infringes the equal protection clause. The infringement of their constitutional right to equal
Philippine Truth Commission of 2010 was expressly created protection of the law is misplaced.
for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since B. Due Process
Executive Order No. 177 specifically referred to the
"previous administration"; while the Joint Committee was Petitioners claim that the Joint Panel does not possess the
created for the purpose of conducting preliminary required cold neutrality of an impartial judge because it is
investigation of election offenses during the 2004 and 2007 all at once the evidence-gatherer, prosecutor and judge.
elections. While GMA and Mike Arroyo were among those They explain that since the Fact-Finding Team has found
subjected to preliminary investigation, not all respondents probable cause to subject them to preliminary
therein were linked to GMA as there were public officers investigation, it is impossible for the Joint Committee to
who were investigated upon in connection with their acts arrive at an opposite conclusion. Petitioners likewise
in the performance of their official duties. Private express doubts of any possibility that the Joint Committee
individuals were also subjected to the investigation by the will be fair and impartial to them as Secretary De Lima and
Joint Committee. Chairman Brillantes had repeatedly expressed
prejudgment against petitioners through their statements
The equal protection guarantee exists to prevent undue captured by the media.
favor or privilege. It is intended to eliminate discrimination
and oppression based on inequality. Recognizing the For their part, respondents contend that petitioners failed
existence of real differences among men, it does not to present proof that the President of the Philippines,
demand absolute equality. It merely requires that all Secretary of Justice, and Chairman of the Comelec
persons under like circumstances and conditions shall be actually made the statements allegedly prejudging their
treated alike both as to privileges conferred and liabilities case and in the context in which they interpreted them.
enforced.78 They likewise contend that assuming that said statements
were made, there was no showing that Secretary De Lima
We once held that the Office of the Ombudsman is had tried to intervene in the investigation to influence its
granted virtually plenary investigatory powers by the outcome nor was it proven that the Joint Committee itself
Constitution and by law and thus may, for every particular had prejudged the case. Lastly, they point out that Joint
investigation, whether commenced by complaint or on its Order No. 001-2011 created two bodies, the Fact-Finding
own initiative, decide how best to pursue each Team and the Joint Committee, with their respective
investigation. Since the Office of the Ombudsman is mandates. Hence, they cannot be considered as one.

46
and (2) the Joint Committee mandated to conduct
We find for respondents. preliminary investigation. It is, therefore, inaccurate to say
that there is only one body which acted as evidence-
It is settled that the conduct of preliminary investigation is, gatherer, prosecutor and judge.
like court proceedings, subject to the requirements of both
substantive and procedural due process.83 Preliminary C. Separation of powers
investigation is considered as a judicial proceeding
wherein the prosecutor or investigating officer, by the Petitioners claim that the Joint Panel is a new public office
nature of his functions, acts as a quasi-judicial officer.84 as shown by its composition, the creation of its own Rules
The authority of a prosecutor or investigating officer duly of Procedure, and the source of funding for its operation.
empowered to preside over or to conduct a preliminary It is their position that the power of the DOJ to investigate
investigation is no less than that of a municipal judge or the commission of crimes and the Comelec’s
even an RTC Judge.85 Thus, as emphasized by the Court constitutional mandate to investigate and prosecute
in Ladlad v. Velasco:86 violations of election laws do not include the power to
create a new public office in the guise of a joint
x x x We cannot emphasize too strongly that prosecutors committee. Thus, in creating the Joint Panel, the DOJ and
should not allow, and should avoid, giving the impression the Comelec encroached upon the power of the
that their noble office is being used or prostituted, wittingly Legislature to create public office.
or unwittingly, for political ends, or other purposes alien to,
or subversive of, the basic and fundamental objective of Respondents dispute this and contend that the Joint
serving the interest of justice evenhandedly, without fear Committee and Fact-Finding Team are not new public
or favor to any and all litigants alike, whether rich or poor, offices, but merely collaborations between two existing
weak or strong, powerless or mighty. Only by strict government agencies sharing concurrent jurisdiction. This
adherence to the established procedure may public's is shown by the fact that the members of the Joint Panel
perception of the impartiality of the prosecutor be are existing officers of the DOJ and the Comelec who
enhanced.87 exercise duties and functions that are already vested in
them.
In this case, as correctly pointed out by respondents, there
was no showing that the statements claimed to have Again, we agree with respondents.
prejudged the case against petitioners were made by
Secretary De Lima and Chairman Brillantes or were in the As clearly explained above, the Comelec is granted the
prejudicial context in which petitioners claimed the power to investigate, and where appropriate, prosecute
statements were made. A reading of the statements cases of election offenses. This is necessary in ensuring free,
allegedly made by them reveals that they were just orderly, honest, peaceful and credible elections. On the
responding to hypothetical questions in the event that other hand, the DOJ is mandated to administer the
probable cause would eventually be found by the Joint criminal justice system in accordance with the accepted
Committee. processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the
More importantly, there was no proof or even an correctional system.91 It is specifically empowered to
allegation that the Joint Committee itself, tasked to "investigate the commission of crimes, prosecute offenders
conduct the requisite preliminary investigation against and administer the probation and correction system."92
petitioners, made biased statements that would convey to Also, the provincial or city prosecutors and their assistants,
the public that the members were favoring a particular as well as the national and regional state prosecutors, are
party. Neither did the petitioners show that the President of specifically named as the officers authorized to conduct
the Philippines, the Secretary of Justice or the Chairman of preliminary investigation.93 Recently, the Comelec,
the Comelec intervened in the conduct of the preliminary through its duly authorized legal offices, is given the power,
investigation or exerted undue pressure on their concurrent with the other prosecuting arms of the
subordinates to tailor their decision with their public government such as the DOJ, to conduct preliminary
declarations and adhere to a pre-determined result.88 investigation of all election offenses.94
Moreover, insofar as the Comelec is concerned, it must be
emphasized that the constitutional body is collegial. The Undoubtedly, it is the Constitution, statutes, and the Rules
act of the head of a collegial body cannot be considered of Court and not the assailed Joint Order which give the
as that of the entire body itself.89 In equating the alleged DOJ and the Comelec the power to conduct preliminary
bias of the above-named officials with that of the Joint investigation. No new power is given to them by virtue of
Committee, there would be no arm of the government the assailed order. As to the members of the Joint
credible enough to conduct a preliminary investigation.90 Committee and Fact-Finding Team, they perform such
functions that they already perform by virtue of their
It must also be emphasized that Joint Order No. 001-2011 current positions as prosecutors of the DOJ and legal
created two bodies, namely: (1) the Fact-Finding Team officers of the Comelec. Thus, in no way can we consider
tasked to gather real, documentary and testimonial the Joint Committee as a new public office.
evidence which can be utilized in the preliminary
investigation to be conducted by the Joint Committee; D. Independence of the Comelec

47
means of disposing of various election offense cases.
Petitioners claim that in creating the Joint Panel, the Apparently, as mere deputies, the prosecutors played a
Comelec has effectively abdicated its constitutional vital role in the conduct of preliminary investigation, in the
mandate to investigate and, where appropriate, to resolution of complaints filed before them, and in the filing
prosecute cases of violation of election laws including acts of the informations with the proper court.
or omissions constituting election frauds, offenses, and
malpractices in favor of the Executive Department acting As pointed out by the Court in Barangay Association for
through the DOJ Secretary. Under the set- up, the National Advancement and Transparency (BANAT) Party-
Comelec personnel is placed under the supervision and List v. Commission on Elections,100 the grant of exclusive
control of the DOJ. The chairperson is a DOJ official. Thus, power to investigate and prosecute cases of election
the Comelec has willingly surrendered its independence offenses to the Comelec was not by virtue of the
to the DOJ and has acceded to share its exercise of Constitution but by the Omnibus Election Code which was
judgment and discretion with the Executive Branch. eventually amended by Section 43 of R.A. 9369. Thus, the
DOJ now conducts preliminary investigation of election
We do not agree. offenses concurrently with the Comelec and no longer as
mere deputies. If the prosecutors had been allowed to
Section 1,95 Article IX-A of the 1987 Constitution expressly conduct preliminary investigation and file the necessary
describes all the Constitutional Commissions as information by virtue only of a delegated authority, they
independent. Although essentially executive in nature, now have better grounds to perform such function by
they are not under the control of the President of the virtue of the statutory grant of authority. If deputation was
Philippines in the discharge of their respective functions.96 justified because of lack of funds and legal officers to
The Constitution envisions a truly independent Comelec ensure prompt and fair investigation and prosecution of
committed to ensure free, orderly, honest, peaceful, and election offenses, the same justification should be cited to
credible elections and to serve as the guardian of the justify the grant to the other prosecuting arms of the
people’s sacred right of suffrage – the citizenry’s vital government of such concurrent jurisdiction.
weapon in effecting a peaceful change of government
and in achieving and promoting political stability.97 In view of the foregoing disquisition, we find no
impediment for the creation of a Joint Committee. While
Prior to the amendment of Section 265 of the Omnibus the composition of the Joint Committee and Fact-Finding
Election Code, the Comelec had the exclusive authority Team is dominated by DOJ officials, it does not necessarily
to investigate and prosecute election offenses. In the follow that the Comelec is inferior. Under the Joint Order,
discharge of this exclusive power, the Comelec was given resolutions of the Joint Committee finding probable cause
the right to avail and, in fact, availed of the assistance of for election offenses shall still be approved by the
other prosecuting arms of the government such as the Comelec in accordance with the Comelec Rules of
prosecutors of the DOJ. By virtue of this continuing Procedure. This shows that the Comelec, though it acts
authority, the state prosecutors and the provincial or city jointly with the DOJ, remains in control of the proceedings.
prosecutors were authorized to receive the complaint for In no way can we say that the Comelec has thereby
election offense and delegate the conduct of abdicated its independence to the executive
investigation to any of their assistants. The investigating department.
prosecutor, in turn, would make a recommendation either
to dismiss the complaint or to file the information. This The text and intent of the constitutional provision granting
recommendation is subject to the approval of the state, the Comelec the authority to investigate and prosecute
provincial or city prosecutor, who himself may file the election offenses is to give the Comelec all the necessary
information with the proper court if he finds sufficient cause and incidental powers for it to achieve the objective of
to do so, subject, however, to the accused’s right to holding free, orderly, honest, peaceful, and credible
appeal to the Comelec.98 elections.101 The Comelec should be allowed
considerable latitude in devising means and methods that
Moreover, during the past national and local elections, the will insure the accomplishment of the great objective for
Comelec issued Resolutions99 requesting the Secretary of which it was created.102 We may not agree fully with its
Justice to assign prosecutors as members of Special Task choice of means, but unless these are clearly illegal or
Forces to assist the Comelec in the investigation and constitute gross abuse of discretion, this Court should not
prosecution of election offenses. These Special Task Forces interfere.103 Thus, Comelec Resolution No. 9266,
were created because of the need for additional lawyers approving the creation of the Joint Committee and Fact-
to handle the investigation and prosecution of election Finding Team, should be viewed not as an abdication of
offenses. the constitutional body’s independence but as a means
to fulfill its duty of ensuring the prompt investigation and
Clearly, the Comelec recognizes the need to delegate to prosecution of election offenses as an adjunct of its
the prosecutors the power to conduct preliminary mandate of ensuring a free, orderly, honest, peaceful and
investigation. Otherwise, the prompt resolution of alleged credible elections.
election offenses will not be attained. This delegation of
power, otherwise known as deputation, has long been Although it belongs to the executive department, as the
recognized and, in fact, been utilized as an effective agency tasked to investigate crimes, prosecute offenders,

48
and administer the correctional system, the DOJ is likewise involving Radam and Martirizar bars the creation of the
not barred from acting jointly with the Comelec. It must be Joint Committee for purposes of conducting another
emphasized that the DOJ and the Comelec exercise preliminary investigation. In short, they claim that the
concurrent jurisdiction in conducting preliminary exercise by the Comelec of its jurisdiction to investigate
investigation of election offenses. The doctrine of excludes other bodies such as the DOJ and the Joint
concurrent jurisdiction means equal jurisdiction to deal Committee from taking cognizance of the case.
with the same subject matter.104 Contrary to the Petitioners add that the investigation should have been
contention of the petitioners, there is no prohibition on conducted also by the Comelec as the 2007 cases of
simultaneous exercise of power between two coordinate Radam and Martirizar include several John Does and Jane
bodies. What is prohibited is the situation where one files a Does.
complaint against a respondent initially with one office
(such as the Comelec) for preliminary investigation which We do not agree.
was immediately acted upon by said office and the re-
filing of substantially the same complaint with another While the Comelec conducted the preliminary
office (such as the DOJ). The subsequent assumption of investigation against Radam, Martirizar and other
jurisdiction by the second office over the cases filed will not unidentified persons, it only pertains to election offenses
be allowed. Indeed, it is a settled rule that the body or allegedly committed in North and South Cotabato. On the
agency that first takes cognizance of the complaint shall other hand, the preliminary investigation conducted by
exercise jurisdiction to the exclusion of the others.105 As the Joint Committee (involving GMA) pertains to election
cogently held by the Court in Department of Justice v. offenses supposedly committed in Maguindanao. More
Hon. Liwag:106 importantly, considering the broad power of the Comelec
to choose the means of fulfilling its duty of ensuring the
To allow the same complaint to be filed successively prompt investigation and prosecution of election offenses
before two or more investigative bodies would promote as discussed earlier, there is nothing wrong if the Comelec
multiplicity of proceedings. It would also cause undue chooses to work jointly with the DOJ in the conduct of said
difficulties to the respondent who would have to appear investigation. To reiterate, in no way can we consider this
and defend his position before every agency or body as an act abdicating the independence of the Comelec.
where the same complaint was filed. This would lead
hapless litigants at a loss as to where to appear and plead Publication Requirement
their cause or defense.
In the conduct of preliminary investigation, the DOJ is
There is yet another undesirable consequence. There is the governed by the Rules of Court, while the Comelec is
distinct possibility that the two bodies exercising jurisdiction governed by the 1993 Comelec Rules of Procedure. There
at the same time would come up with conflicting is, therefore, no need to promulgate new Rules as may be
resolutions regarding the guilt of the respondents. complementary to the DOJ and Comelec Rules.

Finally, the second investigation would entail an As earlier discussed, considering that Joint Order No. 001-
unnecessary expenditure of public funds, and the use of 2011 only enables the Comelec and the DOJ to exercise
valuable and limited resources of Government, in a powers which are already vested in them by the
duplication of proceedings already started with the Constitution and other existing laws, it need not be
Ombudsman.107 published for it to be valid and effective. A close
examination of the Joint Committee’s Rules of Procedure,
None of these problems would likely arise in the present however, would show that its provisions affect the public.
case. The Comelec and the DOJ themselves agreed that Specifically, the following provisions of the Rules either
they would exercise their concurrent jurisdiction jointly. restrict the rights of or provide remedies to the affected
Although the preliminary investigation was conducted on parties, to wit: (1) Section 1 provides that "the Joint
the basis of two complaints – the initial report of the Fact- Committee will no longer entertain complaints from the
Finding Team and the complaint of Senator Pimentel – public as soon as the Fact-Finding Team submits its final
both complaints were filed with the Joint Committee. report, except for such complaints involving offenses
Consequently, the complaints were filed with and the mentioned in the Fact-Finding Team’s Final Report"; (2)
preliminary investigation was conducted by only one Section 2 states that "the Joint Committee shall not
investigative body. Thus, we find no reason to disallow the entertain a Motion to Dismiss"; and (3) Section 5 provides
exercise of concurrent jurisdiction jointly by those given that a Motion for Reconsideration may be availed of by
such authority. This is especially true in this case given the the aggrieved parties against the Joint Committee’s
magnitude of the crimes allegedly committed by Resolution. Consequently, publication of the Rules is
petitioners. The joint preliminary investigation also serves to necessary.
maximize the resources and manpower of both the
Comelec and the DOJ for the prompt disposition of the The publication requirement covers not only statutes but
cases. administrative regulations and issuances, as clearly
outlined in Tañada v. Tuvera:108 effectivity, which shall
Citing the principle of concurrent jurisdiction, petitioners begin fifteen days after publication unless a different
insist that the investigation conducted by the Comelec effectivity date is fixed by the legislature. Covered by this

49
rule are presidential decrees and executive orders reprehensible pattern of abuse of inalienable rights and a
promulgated by the President in the exercise of legislative blatant disregard of the envisioned integrity and
powers whenever the same are validly delegated by the independence of the Comelec; (2) as it stands, the
legislature or, at present, directly conferred by the creation of the Joint Committee was for the singular
Constitution. Administrative rules and regulations must also purpose of railroading the proceedings in the prosecution
be published if their purpose is to enforce or implement of the petitioner and in flagrant violation of her right to due
existing law pursuant also to a valid delegation. process and equal protection of the laws; (3) the
Interpretative regulations and those merely internal in proceedings of the Joint Committee cannot be
nature, that is, regulating only the personnel of the considered impartial and fair, considering that
administrative agency and not the public, need not be respondents have acted as law enforcers, who
published. Neither is publication required of the so called conducted the criminal investigation, gathered evidence
letters of instructions issued by administrative superiors and thereafter ordered the filing of complaints, and at the
concerning the rules or guidelines to be followed by their same time authorized preliminary investigation based on
subordinates in the performance of their duties.109 the complaints they caused to be filed; (4) the Comelec
became an instrument of oppression when it hastily
As opposed to Honasan II v. The Panel of Investigating approved the resolution of the Joint Committee even if
Prosecutors of the Department of Justice,110 where the two of its members were in no position to cast their votes
Court held that OMB-DOJ Joint Circular No. 95-001 is only as they admitted to not having yet read the voluminous
an internal arrangement between the DOJ and the Office records of the cases; and (5) flagrant and repeated
of the Ombudsman outlining the authority and violations of her right to due process at every stage of the
responsibilities among prosecutors of both offices in the proceedings demonstrate a deliberate attempt to single
conduct of preliminary investigation, the assailed Joint out petitioner through the creation of the Joint
Committee’s Rules of Procedure regulate not only the Committee.114
prosecutors of the DOJ and the Comelec but also the
conduct and rights of persons, or the public in general. The In their Supplement to the Consolidated Comment,115
publication requirement should, therefore, not be ignored. respondents accuse petitioners of violating the rule
against forum shopping. They contend that in filing the
Publication is a necessary component of procedural due Supplemental Petition before the Court, the Urgent
process to give as wide publicity as possible so that all Omnibus Motion Ad Cautelam with the RTC, and the
persons having an interest in the proceedings may be Motion to Vacate Ad Cautelam with the Comelec, GMA
notified thereof.111 The requirement of publication is raises the common issue of whether or not the
intended to satisfy the basic requirements of due process. proceedings before the Joint Committee and the
It is imperative for it will be the height of injustice to punish Comelec are null and void for violating the Constitution.
or otherwise burden a citizen for the transgressions of a law Respondents likewise claim that the issues raised in the
or rule of which he had no notice whatsoever.112 supplemental petition are factual which is beyond the
power of this Court to decide.
Nevertheless, even if the Joint Committee’s Rules of
Procedure is ineffective for lack of publication, the We cannot dismiss the cases before us on the ground of
proceedings undertaken by the Joint Committee are not forum shopping.
rendered null and void for that reason, because the
preliminary investigation was conducted by the Joint Forum shopping is the act of a party against whom an
Committee pursuant to the procedures laid down in Rule adverse judgment has been rendered in one forum, of
112 of the Rules on Criminal Procedure and the 1993 seeking another and possibly favorable opinion in another
Comelec Rules of Procedure. forum other than by appeal or the special civil action of
certiorari.116 There can also be forum shopping when a
Validity of the Conduct of party institutes two or more suits in different courts, either
Preliminary Investigation simultaneously or successively, in order to ask the courts to
rule on the same and related causes and/or to grant the
In her Supplemental Petition,113 GMA outlines the same or substantially the same reliefs on the supposition
incidents that took place after the filing of the instant that one or the other court would make a favorable
petition, specifically the issuance by the Joint Committee disposition or increase a party’s chances of obtaining a
of the Joint Resolution, the approval with modification of favorable decision or action.117
such resolution by the Comelec and the filing of
information and the issuance of a warrant of arrest by the Indeed, petitioner GMA filed a Supplemental Petition
RTC. With these supervening events, GMA further assails before the Court, an Urgent Omnibus Motion Ad
the validity of the proceedings that took place based on Cautelam before the RTC, and a Motion to Vacate Ad
the following additional grounds: (1) the undue and Cautelam before the Comelec, emphasizing the
unbelievable haste attending the Joint Committee’s unbelievable haste committed by the Joint Committee
conduct of the preliminary investigation, its resolution of and the Comelec in disposing of the cases before them.
the case, and its referral to and approval by the Comelec, However, a plain reading of the allegations in GMA’s
taken in conjunction with the statements from the Office motion before the RTC would show that GMA raised the
of the President, demonstrate a deliberate and issue of undue haste in issuing the Joint Resolution only in

50
support of her prayer for the trial court to hold in abeyance In a preliminary investigation, the Rules of Court guarantee
the issuance of the warrant of arrest, considering that her the petitioners basic due process rights such as the right to
motion for reconsideration of the denial of her motion to be furnished a copy of the complaint, the affidavits, and
be furnished copies of documents was not yet acted upon other supporting documents, and the right to submit
by the Joint Committee. If at all the constitutional issue of counter-affidavits, and other supporting documents in her
violation of due process was raised, it was merely defense.122 Admittedly, GMA received the notice
incidental. More importantly, GMA raised in her motion requiring her to submit her counter-affidavit. Yet, she did
with the RTC the finding of probable cause as she sought not comply, allegedly because she could not prepare her
the judicial determination of probable cause which is not counter-affidavit. She claimed that she was not furnished
an issue in the petitions before us. GMA’s ultimate prayer is by Senator Pimentel pertinent documents that she
actually for the court to defer the issuance of the warrant needed to adequately prepare her counter-affidavit.
of arrest. Clearly, the reliefs sought in the RTC are different
from the reliefs sought in this case. Thus, there is no forum In her Omnibus Motion Ad Cautelam123 to require Senator
shopping. Pimentel to furnish her with documents referred to in his
complaint-affidavit and for production of election
With respect to the Motion to Vacate Ad Cautelam filed documents as basis for the charge of electoral sabotage,
with the Comelec, while the issues raised therein are GMA prayed that the Joint Committee issue an Order
substantially similar to the issues in the supplemental directing the Fact-Finding Team and Senator Pimentel to
petition which, therefore, strictly speaking, warrants furnish her with copies of the following documents:
outright dismissal on the ground of forum shopping, we
cannot do so in this case in light of the due process issues a. Complaint-affidavit and other relevant documents of
raised by GMA.118 It is worthy to note that the main issues Senator Aquilino Pimentel III filed before the Commission
in the present petitions are the constitutionality of the on Elections against Attys. Lilia Suan-Radam and Yogie
creation of the Joint Panel and the validity of the Martirizar, as well as the Informations filed in the Regional
proceedings undertaken pursuant thereto for alleged Trial Court of Pasay City, Branch 114 in Criminal Case Nos.
violation of the constitutional right to due process. In R-PSU-11-03190-CR to R-PSU-11-03200-CR.
questioning the propriety of the conduct of the preliminary
investigation in her Supplemental Petition, GMA only raises b. Records in the petitions filed by complainant Pimentel
her continuing objection to the exercise of jurisdiction of before the National Board of Canvassers, specifically in
the Joint Committee and the Comelec. There is, therefore, NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and
no impediment for the Court to rule on the validity of the 07-163.
conduct of preliminary investigation.
c. Documents which served as basis in the allegations of
In Uy v. Office of the Ombudsman,119 the Court explained "Significant findings specific to the protested municipalities
the nature of preliminary investigation, to wit: in the Province of Maguindanao."

A preliminary investigation is held before an accused is d. Documents which served as basis in the allegations of
placed on trial to secure the innocent against hasty, "Significant findings specific to the protested municipalities
malicious, and oppressive prosecution; to protect him from in the Province of Lanao del Norte."
an open and public accusation of a crime, as well as from
the trouble, expenses, and anxiety of a public trial. It is also e. Documents which served as basis in the allegations of
intended to protect the state from having to conduct "Significant findings specific to the protested municipalities
useless and expensive trials. While the right is statutory in the Province of Shariff Kabunsuan."
rather than constitutional, it is a component of due process
in administering criminal justice. The right to have a f. Documents which served as basis in the allegations of
preliminary investigation conducted before being bound "Significant findings specific to the protested municipalities
for trial and before being exposed to the risk of in the Province of Lanao del Sur."
incarceration and penalty is not a mere formal or
technical right; it is a substantive right. To deny the g. Documents which served as basis in the allegations of
accused's claim to a preliminary investigation is to deprive "Significant findings specific to the protested municipalities
him of the full measure of his right to due process.120 in the Province of Sulu."

A preliminary investigation is the crucial sieve in the h. Documents which served as basis in the allegations of
criminal justice system which spells for an individual the "Significant findings specific to the protested municipalities
difference between months if not years of agonizing trial in the Province of Basilan."
and possibly jail term, on the one hand, and peace of
mind and liberty, on the other hand. Thus, we have i. Documents which served as basis in the allegations of
characterized the right to a preliminary investigation as not "Significant findings specific to the protested municipalities
a mere formal or technical right but a substantive one, in the Province of Sultan Kudarat."124
forming part of due process in criminal justice.121

51
GMA likewise requested the production of election allegations of significant findings specific to the protested
documents used in the Provinces of South and North municipalities involved, there were no annexes or
Cotabato and Maguindanao.125 attachments to the complaint filed.128 As stated in the
Joint Committee’s Order dated November 15, 2011
The Joint Committee, however, denied GMA’s motion denying GMA’s Omnibus Motion Ad Cautelam, Senator
which carried with it the denial to extend the filing of her Pimentel was ordered to furnish petitioners with all the
counter-affidavit. Consequently, the cases were supporting evidence129 However, Senator Pimentel
submitted for resolution sans GMA’s and the other manifested that he was adopting all the affidavits
petitioners’ counter-affidavits. This, according to GMA, attached to the Fact-Finding Team’s Initial Report.130
violates her right to due process of law. Therefore, when GMA was furnished with the documents
attached to the Initial Report, she was already granted the
We do not agree. right to examine as guaranteed by the Comelec Rules of
Procedure and the Rules on Criminal Procedure. Those
GMA’s insistence of her right to be furnished the above- were the only documents submitted by the complainants
enumerated documents is based on Section 3 (b), Rule to the Committee. If there are other documents that were
112 of the Rules on Criminal Procedure, which reads: referred to in Senator Pimentel’s complaint but were not
submitted to the Joint Committee, the latter considered
(b) x x x those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later
The respondent shall have the right to examine the be presented during the trial)131 as the evidence
evidence submitted by the complainant which he may submitted before it were considered adequate to find
not have been furnished and to copy them at his expense. probable cause against her.132 Anyway, the failure of the
If the evidence is voluminous, the complainant may be complainant to submit documents supporting his
required to specify those which he intends to present allegations in the complaint may only weaken his claims
against the respondent, and these shall be made and eventually works for the benefit of the respondent as
available for examination or copying by the respondent at these merely are allegations unsupported by independent
his expense, evidence.

Objects as evidence need not be furnished a party but We must, however, emphasize at this point that during the
shall be made available for examination, copying or preliminary investigation, the complainants are not
photographing at the expense of the requesting party.126 obliged to prove their cause beyond reasonable doubt. It
would be unfair to expect them to present the entire
Section 6 (a), Rule 34 of the Comelec Rules of Procedure evidence needed to secure the conviction of the
also grants the respondent such right of examination, to accused prior to the filing of information.133 A preliminary
wit: investigation is not the occasion for the full and exhaustive
display of the parties’ respective evidence but the
Sec. 6. Conduct of preliminary investigation. – (a) If on the presentation only of such evidence as may engender a
basis of the complaint, affidavits and other supporting well-grounded belief that an offense has been committed
evidence, the investigating officer finds no ground to and that the accused is probably guilty thereof and should
continue with the inquiry, he shall recommend the be held for trial.134 Precisely there is a trial to allow the
dismissal of the complaint and shall follow the procedure reception of evidence for the prosecution in support of the
prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall issue charge.135
a subpoena to the respondent, attaching thereto a copy
of the complaint, affidavits and other supporting With the denial of GMA’s motion to be furnished with and
documents giving said respondent ten (10) days from examine the documents referred to in Senator Pimentel’s
receipt within which to submit counter-affidavits and other complaint, GMA’s motion to extend the filing of her
supporting documents. The respondent shall have the right counter-affidavit and countervailing evidence was
to examine all other evidence submitted by the consequently denied. Indeed, considering the nature of
complainant.127 the crime for which GMA was subjected to preliminary
investigation and the documents attached to the
Clearly from the above-quoted provisions, the subpoena complaint, it is incumbent upon the Joint Committee to
issued against respondent therein should be afford her ample time to examine the documents
accompanied by a copy of the complaint and the submitted to the Joint Committee in order that she would
supporting affidavits and documents. GMA also has the be able to prepare her counter-affidavit. She cannot,
right to examine documents but such right of examination however, insist to examine documents not in the
is limited only to the documents or evidence submitted by possession and custody of the Joint Committee nor
the complainants (Senator Pimentel and the Fact-Finding submitted by the complainants. Otherwise, it might cause
Team) which she may not have been furnished and to undue and unnecessary delay in the disposition of the
copy them at her expense. cases. This undue delay might result in the violation of the
right to a speedy disposition of cases as enshrined in
While it is true that Senator Pimentel referred to certain Section 16, Article III of the Constitution which states that
election documents which served as bases in the "all persons shall have the right to a speedy disposition of

52
their cases before all judicial, quasi-judicial, or had the authority to file the information for electoral
administrative bodies." The constitutional right to speedy sabotage and because the presence or absence of
disposition of cases is not limited to the accused in criminal probable cause is not an issue herein. As can be gleaned
proceedings but extends to all parties in all cases, from their assignment of errors/issues, petitioners did not
including civil and administrative cases, and in all question the finding of probable cause in any of their
proceedings, including judicial and quasi-judicial supplemental petitions. It was only in GMA’s memorandum
hearings.136 Any party to a case has the right to demand where she belatedly included a discussion on the
on all officials tasked with the administration of justice to "insufficiency" of the evidence supporting the finding of
expedite its disposition.137 Society has a particular interest probable cause for the filing of the Information for
in bringing swift prosecutions, and the society’s electoral sabotage against her.144 A closer look at her
representatives are the ones who should protect that arguments, however, would show that they were included
interest.138 only to highlight the necessity of examining the election
documents GMA requested to see before she could file
Even assuming for the sake of argument that the denial of her counter-affidavit. At any rate, since GMA failed to
GMA’s motion to be furnished with and examine the submit her counter-affidavit and other countervailing
documents referred to in Senator Pimentel’s complaint evidence within the period required by the Joint
carried with it the denial to extend the filing of her counter- Committee, we cannot excuse her from non-compliance.
affidavit and other countervailing evidence rendering the
preliminary investigation irregular, such irregularity would There might have been overzealousness on the part of the
not divest the RTC of jurisdiction over the case and would Joint Committee in terminating the investigation,
not nullify the warrant of arrest issued in connection endorsing the Joint Resolution to the Comelec for
therewith, considering that Informations had already been approval, and in filing the information in court. However,
filed against petitioners, except Mike Arroyo. This would speed in the conduct of proceedings by a judicial or
only compel us to suspend the proceedings in the RTC and quasi-judicial officer cannot per se be instantly attributed
remand the case to the Joint Committee so that GMA to an injudicious performance of functions.145 The orderly
could submit her counter-affidavit and other administration of justice remains the paramount
countervailing evidence if she still opts to. However, to do consideration with particular regard to the peculiar
so would hold back the progress of the case which is circumstances of each case.146 To be sure, petitioners
anathema to the accused’s right to speedy disposition of were given the opportunity to present countervailing
cases. evidence. Instead of complying with the Joint
Committee’s directive, several motions were filed but were
It is well settled that the absence or irregularity of denied by the Joint Committee. Consequently,
preliminary investigation does not affect the court’s petitioners’ right to submit counter-affidavit and
jurisdiction over the case. Nor does it impair the validity of countervailing evidence was forfeited. Taking into
the criminal information or render it defective. Dismissal is account the constitutional right to speedy disposition of
not the remedy.139 Neither is it a ground to quash the cases and following the procedures set forth in the Rules
information or nullify the order of arrest issued against the on Criminal Procedure and the Comelec Rules of
accused or justify the release of the accused from Procedure, the Joint Committee finally reached its
detention.140 The proper course of action that should be conclusion and referred the case to the Comelec. The
taken is to hold in abeyance the proceedings upon such latter, in turn, performed its task and filed the information
information and to remand the case for the conduct of in court. Indeed, petitioners were given the opportunity to
preliminary investigation.141 be heard. They even actively participated in the
proceedings and in fact filed several motions before the
In the landmark cases of Cojuangco, Jr. v. Presidential Joint Committee. Consistent with the constitutional
Commission on Good Government (PCGG)142 and mandate of speedy disposition of cases, unnecessary
Allado v. Diokno,143 we dismissed the criminal cases and delays should be avoided.
set aside the informations and warrants of arrest. In
Cojuangco, we dismissed the criminal case because the Finally, we take judicial notice that on February 23, 2012,
information was filed by the PCGG which we declared to GMA was already arraigned and entered a plea of "not
be unauthorized to conduct the preliminary investigation guilty" to the charge against her and thereafter filed a
and, consequently, file the information as it did not possess Motion for Bail which has been granted. Considering that
the cold neutrality of an impartial judge. In Allado, we set the constitutionality of the creation of the Joint Panel is
aside the warrant of arrest issued against petitioners sustained, the actions of the Joint Committee and Fact-
therein and enjoined the trial court from proceeding Finding Team are valid and effective. As the information
further for lack of probable cause. For one, there was was filed by the Commission authorized to do so, its validity
serious doubt on the reported death of the victim in that is sustained. Thus, we consider said entry of plea and the
case since the corpus delicti had not been established nor Petition for Bail waiver on the part of GMA of her right to
had his remains been recovered;and based on the submit counter-affidavit and countervailing evidence
evidence submitted, there was nothing to incriminate before the Joint Committee, and recognition of the
petitioners therein. In this case, we cannot reach the same validity of the information against her. Her act indicates
conclusion because the Information filed before the RTC that she opts to avail of judicial remedies instead of the
of Pasay City was filed by the Comelec en banc which executive remedy of going back to the Joint Committee

53
for the submission of the counter-affidavit and refused to excuse himself from hearing the case. Javier,
countervailing evidence. Besides, as discussed earlier, the however, is not applicable in this case. First, the cited case
absence or irregularity of preliminary investigation does involves the Comelec’s exercise of its adjudicatory
not affect the court’s jurisdiction over the case nor does it function as it was called upon to resolve the propriety of
impair the validity of the criminal information or render it the proclamation of the winner in the May 1984 elections
defective. for Batasang Pambansa of Antique. Clearly, the grounds
for inhibition/disqualification were applicable. Second, the
It must be stressed, however, that this supervening event case arose at the time where the purity of suffrage has
does not render the cases before the Court moot and been defiled and the popular will scorned through the
academic as the main issues raised by petitioners are the confabulation of those in authority.152 In other words, the
constitutionality of the creation of the Joint Committee controversy arose at the time when the public confidence
and the Fact-Finding Team and the validity of the in the Comelec was practically nil because of its
proceedings undertaken pursuant to their respective transparent bias in favor of the administration.153 Lastly, in
mandates. determining the propriety of the decision rendered by the
Comelec, the Court took into consideration not only the
The Court notes that the Joint Committee and the relationship (being former partners in the law firm)
Comelec have not disposed of the cases of the other between private respondents therein, Arturo F.
respondents subjects of the preliminary investigation as Pacificador, and then Comelec Commissioner Jaime
some of them were subjected to further investigation. In Opinion (Commissioner Opinion) but also the general
order to remove the cloud of doubt that pervades that attitude of the Comelec toward the party in power at that
petitioners are being singled out, it is to the best interest of time. Moreover, the questioned Comelec decision was
all the parties concerned that the Joint Committee and rendered only by a division of the Comelec. The Court thus
the Comelec terminate the proceedings as to the other concluded in Javier that Commissioner Opinion’s refusal to
respondents therein and not make a piecemeal inhibit himself divested the Comelec’s Second Division of
disposition of the cases. the necessary vote for the questioned decision and
rendered the proceedings null and void.154
A peripheral issue which nonetheless deserves our
attention is the question about the credibility of the On the contrary, the present case involves only the
Comelec brought about by the alleged professional conduct of preliminary investigation and the questioned
relationship between Comelec Chairman Brillantes on one resolution is an act of the Comelec En Banc where all the
hand and the complainant Senator Pimentel and Commissioners participated and more than a majority
Fernando Poe, Jr. (FPJ), GMA’s rival in the 2004 elections, (even if Chairman Brillantes is excluded) voted in favor of
on the other hand; and by the other Commissioners’147 the assailed Comelec resolution. Unlike in 1986, public
reasons for their partial inhibition. To be sure, Chairman confidence in the Comelec remains. The Commissioners
Brillantes’ relationship with FPJ and Senator Pimentel is not have already taken their positions in light of the claim of
one of the grounds for the mandatory disqualification of a "bias and partiality" and the causes of their partial
Commissioner. At its most expansive, it may be considered inhibition. Their positions should be respected confident
a ground for voluntary inhibition which is indeed that in doing so, they had the end in view of ensuring that
discretionary as the same was primarily a matter of the credibility of the Commission is not seriously affected.
conscience and sound discretion on the part of the
Commissioner judge based on his or her rational and To recapitulate, we find and so hold that petitioners failed
logical assessment of the case.148 Bare allegations of bias to establish any constitutional or legal impediment to the
and prejudice are not enough in the absence of clear and creation of the Joint DOJ-Comelec Preliminary
convincing evidence to overcome the presumption that a Investigation Committee and Fact-Finding Team.
judge will undertake his noble role to dispense justice
according to law and evidence without fear or favor.149 First, while GMA and Mike Arroyo were among those
It being discretionary and since Commissioner Brillantes subjected to preliminary investigation, not all respondents
was in the best position to determine whether or not there therein were linked to GMA; thus, Joint Order No. 001-2011
was a need to inhibit from the case, his decision to does not violate the equal protection clause of the
participate in the proceedings, in view of higher interest of Constitution.
justice, equity and public interest, should be respected.
While a party has the right to seek the inhibition or Second, the due process clause is likewise not infringed
disqualification of a judge (or prosecutor or Commissioner) upon by the alleged prejudgment of the case as
who does not appear to be wholly free, disinterested, petitioners failed to prove that the Joint Panel itself showed
impartial, and independent in handling the case, this right such bias and partiality against them. Neither was it shown
must be weighed with his duty to decide cases without that the Justice Secretary herself actually intervened in the
fear of repression.150 conduct of the preliminary investigation. More importantly,
considering that the Comelec is a collegial body, the
Indeed, in Javier v. Comelec,151 the Court set aside the perceived prejudgment of Chairman Brillantes as head of
Comelec’s decision against Javier when it was disclosed the Comelec cannot be considered an act of the body
that one of the Commissioners who had decided the case itself.
was a law partner of Javier’s opponent and who had

54
Third, the assailed Joint Order did not create new offices G.R. Nos. 162144-54 November 13, 2012
because the Joint Committee and Fact-Finding Team
perform functions that they already perform by virtue of PEOPLE OF THE PHILIPPINES, Petitioner,
the Constitution, the statutes, and the Rules of
vs.
Court.1âwphi1
HON. MA. THERESA L. DELA TORRE- YADAO, in her
Fourth, in acting jointly with the DOJ, the Comelec cannot capacity as Presiding Judge, Branch 81, Regional
be considered to have abdicated its independence in Trial Court of Quezon City, HON. MA. NATIVIDAD M.
favor of the executive branch of government. Resolution DIZON, in her capacity as Executive Judge of the
No. 9266 was validly issued by the Comelec as a means to Regional Trial Court of Quezon City, PANFILO M.
fulfill its duty of ensuring the prompt investigation and LACSON, JEWEL F. CANSON, ROMEO M. ACOP,
prosecution of election offenses as an adjunct of its FRANCISCO G. ZUBIA, JR., MICHAEL RAY B. AQUINO,
mandate of ensuring a free, orderly, honest, peaceful, and CEZAR O. MANCAO II, ZOROBABEL S. LAURELES,
credible elections. The role of the DOJ in the conduct of
GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE
preliminary investigation of election offenses has long
been recognized by the Comelec because of its lack of
ERWIN T. VILLACORTE, GIL C. MENESES, ROLANDO
funds and legal officers to conduct investigations and to ANDUYAN, JOSELITO T. ESQUIVEL, RICARDO G.
prosecute such cases on its own. This is especially true after DANDAN, CEASAR TANNAGAN, VICENTE P. ARNADO,
R.A. No. 9369 vested in the Comelec and the DOJ the ROBERTO T. LANGCAUON, ANGELITO N. CAISIP,
concurrent jurisdiction to conduct preliminary ANTONIO FRIAS, CICERO S. BACOLOD, WILLY NUAS,
investigation of all election offenses. While we uphold the JUANITO B. MANAOIS, VIRGILIO V. PARAGAS,
validity of Comelec Resolution No. 9266 and Joint Order ROLANDO R. JIMENEZ, CECILIO T. MORITO, REYNALDO
No. 001-2011, we declare the Joint Committee’s Rules of C. LAS PINAS, WILFREDO G CUARTERO, ROBERTO O.
Procedure infirm for failure to comply with the publication
AGBALOG, OSMUNDO B. CARINO, NORBERTO
requirement. Consequently, Rule 112 of the Rules on
Criminal Procedure and the 1993 Comelec Rules of
LASAGA, LEONARDO GLORIA, ALEJANDRO G
Procedure govern. LIWANAG, ELMER FERRER and ROMY CRUZ,
Respondents.
Fifth, petitioners were given the opportunity to be heard.
They were furnished a copy of the complaint, the DECISION
affidavits, and other supporting documents submitted to
the Joint Committee and they were required to submit ABAD, J.:
their counter-affidavit and countervailing evidence. As to
petitioners Mike Arroyo and Abalos, the pendency of the This case, which involves the alleged summary execution
cases before the Court does not automatically suspend of suspected members of the Kuratong Bale/eng Gang, is
the proceedings before the Joint Committee nor excuse once again before this Court this time questioning, among
them from their failure to file the required counter- other things, the trial qmrt's determination of the absence
affidavits. With the foregoing disquisitions, we find no of probable cause and its dismissal of the criminal
reason to nullify the proceedings undertaken by the Joint actions.1
Committee and the Comelec in the electoral sabotage
cases against petitioners. The Facts and the Case

WHEREFORE, premises considered, the petitions and In the early morning of May 18, 1995, the combined forces
supplemental petitions are DISMISSED. Comelec Resolution of the Philippine National Police's Anti-Bank Robbery and
No. 9266 dated August 2, 2011, Joint Order No. 001-2011 Intelligence Task Group (PNP ABRITG) composed of Task
dated August 15, 2011, and the Fact-Finding Team’s Initial Force Habagat (then headed by Police Chief
Report dated October 20, 2011, are declared VALID. Superintendent Panfilo M. Lacson), Traffic Management
However, the Rules of Procedure on the Conduct of Command ([TMC] led by then Police Senior
Preliminary Investigation on the Alleged Election Fraud in Superintendent Francisco G. Zubia, Jr.), Criminal
the 2004 and 2007 National Elections is declared Investigation Command (led by then Police Chief
INEFFECTIVE for lack of publication. Superintendent Romeo M. Acop ), and National Capital
Region Command (headed by then Police Chief
In view of the constitutionality of the Joint Panel and the Superintendent Jewel F. Canson) killed 11 suspected
proceedings having been conducted in accordance with members of the Kuratong Baleleng Gang2 along
Rule 112 of the Rules on Criminal Procedure and Rule 34 of Commonwealth Avenue in Quezon City.
the Comelec Rules of Procedure, the conduct of the
preliminary investigation is hereby declared VALID. Subsequently, SPO2 Eduardo Delos Reyes of the Criminal
Investigation Command told the press that it was a
Let the proceedings in the Regional Trial Court of Pasay summary execution, not a shoot-out between the police
City, Branch 112, where the criminal cases for electoral and those who were slain. After investigation, the Deputy
sabotage against petitioners GMA and Abalos are Ombudsman for Military Affairs absolved all the police
pending, proceed with dispatch. SO ORDERED. officers involved, including respondents Panfilo M. Lacson,
Jewel F. Canson, Romeo M. Acop, Francisco G. Zubia, Jr.,
55
Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others June 6, 2001 the panel of prosecutors found probable
(collectively, the respondents).3 On review, however, the cause to hold Lacson and his co-accused liable as
Office of the Ombudsman reversed the finding and filed principals for 11 counts of murder, resulting in the filing of
charges of murder against the police officers involved separate informations against them in Criminal Cases 01-
before the Sandiganbayan in Criminal Cases 23047 to 57, 101102 to 12 before the RTC of Quezon City, Branch 81,
except that in the cases of respondents Zubia, Acop, and now presided over by respondent Judge Ma. Theresa L.
Lacson, their liabilities were downgraded to mere Yadao.
accessory. On arraignment, Lacson pleaded not guilty.
On the same day, respondent Lacson filed a petition for
Upon respondents’ motion, the Sandiganbayan ordered certiorari before the Court of Appeals (CA), assailing the
the transfer of their cases to the Regional Trial Court (RTC) RTC of Manila’s order which allowed the renewed
of Quezon City on the ground that none of the principal preliminary investigation of the murder charges against
accused had the rank of Chief Superintendent or higher. him and his co-accused. Lacson also filed with the RTC of
Pending the resolution of the Office of the Special Quezon City a motion for judicial determination of
Prosecutor’s motion for reconsideration of the transfer probable cause. But on June 13, 2001 he sought the
order, Congress passed Republic Act (R.A.) 8249 that suspension of the proceedings in that court.
expanded the Sandiganbayan’s jurisdiction by deleting
the word "principal" from the phrase "principal accused" to In the meantime, the CA issued a temporary restraining
apply to all pending cases where trial had not begun. As order enjoining the RTC of Quezon City from issuing
a result of this new law, the Sandiganbayan opted to warrants of arrest or conducting any proceeding in
retain and try the Kuratong Baleleng murder cases. Criminal Cases 01-101102 to 12 before it. On August 24,
2001 the CA rendered a Decision, granting Lacson’s
Respondent Lacson challenged the constitutionality of petition on the ground of double jeopardy since, although
R.A. 8249 in G.R. 1280964 but this Court upheld its validity. the dismissal of Criminal Cases Q-99-81679 to 89 was
Nonetheless, the Court ordered the transfer of the trial of provisional, such dismissal became permanent two years
the cases to the RTC of Quezon City since the amended after when they were not revived.
informations contained no allegations that respondents
committed the offenses charged in relation to, or in the Upon the prosecution’s appeal to this Court in G.R.
discharge of, their official functions as required by R.A. 149453,5 the Court ruled that, based on the record, Lacson
8249. failed to prove compliance with the requirements of
Section 8, Rule 117 governing provisional dismissals. The
Before the RTC of Quezon City, Branch 81, then presided records showed that the prosecution did not file a motion
over by Judge Wenceslao Agnir, Jr., could arraign for provisional dismissal and, for his part, respondent
respondents in the re-docketed Criminal Cases Q-99-81679 Lacson had merely filed a motion for judicial
to 89, however, SPO2 Delos Reyes and the other determination of probable cause. Nowhere did he agree
prosecution witnesses recanted their affidavits. Some of to some proposal for a provisional dismissal of the cases.
the victims’ heirs also executed affidavits of desistance. Furthermore, the heirs of the victims had no notice of any
These prompted the respondents to file separate motions motion for such provisional dismissal.
for the determination of probable cause before the
issuance of warrants of arrests. The Court thus set aside the CA Decision of August 24, 2001
and directed the RTC of Quezon City to try the cases with
On March 29, 1999 the RTC of Quezon City ordered the dispatch. On motion for reconsideration by respondent
provisional dismissal of the cases for lack of probable Lacson, the Court ordered the re-raffle of the criminal
cause to hold the accused for trial following the cases to a heinous crimes court. Upon re-raffle, however,
recantation of the principal prosecution witnesses and the the cases still went to Branch 81, which as already stated
desistance of the private complainants. was now presided over by Judge Yadao.

Two years later or on March 27, 2001 PNP Director Leandro On October 12, 2003 the parents of two of the victims
R. Mendoza sought to revive the cases against submitted birth certificates showing that they were minors.
respondents by requesting the Department of Justice Apparently reacting to this, the prosecution amended the
(DOJ) to conduct another preliminary investigation in their informations to show such minority and asked respondent
cases on the strength of the affidavits of P/Insp. Ysmael S. Executive Judge Ma. Natividad M. Dizon to recall the
Yu and P/S Insp. Abelardo Ramos. In response, then DOJ assignment of the cases to Branch 81 and re-raffle them to
Secretary Hernando B. Perez constituted a panel of a family court. The request for recall was denied.
prosecutors to conduct the requested investigation.
On October 20, 2003 the prosecution filed an omnibus
Invoking their constitutional right against double jeopardy, motion before Branch 81, praying for the re-raffle of
Lacson and his co-accused filed a petition for prohibition Criminal Cases 01-101102 to12 to the family courts in view
with application for temporary restraining order and writ of of the changes in the two informations. On October 24,
preliminary injunction before the RTC of Manila in Civil 2003 the prosecution also filed its consolidated comment
Case 01-100933. In an Order dated June 5, 2001, that court ex-abundanti cautela on the motions to determine
denied the plea for temporary restraining order. Thus, on probable cause.

56
On November 12, 20036 Judge Yadao issued an order, 5. Whether or not Judge Yadao gravely abused her
denying the prosecution’s motion for re-raffle to a family discretion when she adopted certain policies concerning
court on the ground that Section 5 of R.A. 8369 applied the conduct of hearings in her court.
only to living minors. She also granted the motions for
determination of probable cause and dismissed the cases The Court’s Rulings
against the respondents since the affidavits of the
prosecution witnesses were inconsistent with those they Before addressing the above issues, the Court notes
submitted in the preliminary investigations before the respondents’ contention that the prosecution’s resort to
Ombudsman for the crime of robbery. special civil action of certiorari under Rule 65 is improper.
Since the trial court dismissed the criminal actions against
On November 25, 2003 the prosecution filed a verified respondents, the prosecution’s remedy was to appeal to
motion to recuse or disqualify Judge Yadao and for the CA from that order of dismissal.
reconsideration of her order. It also filed an administrative
complaint against her for dishonesty, conduct prejudicial Ordinarily, the proper remedy from an order dismissing an
to the best interests of the service, manifest partiality, and action is an appeal.8 Here, the prosecution in fact filed a
knowingly rendering an unjust judgment.7 On January 14, notice of appeal from such an order issued in the subject
2004, the prosecution filed an urgent supplemental motion cases. But it reconsidered its action and withdrew that
for compulsory disqualification with motion for notice, believing that appeal was not an effective,
cancellation of the hearing on motion for reconsideration. speedy, and adequate remedy.9 In other words, the
prosecution’s move was not a case of forgotten remedy
On January 21, 2004 Judge Yadao issued an order, but a conscious resort to another based on a belief that
denying the motion to recuse her, prompting the respondent Judge Yadao gravely abused her discretion in
prosecution to appeal from that order. Further, on January issuing her various orders and that certiorari under Rule 65
22, 2004 Judge Yadao issued another order, denying the was the proper and all-encompassing remedy for the
prosecution’s motion for reconsideration of the Order prosecution. The Court is not prepared to say that the
dated November 12, 2003 that dismissed the action remedy is altogether implausible as to throw out the
against the respondents. In response, the prosecution filed petition outright.
a notice of appeal from the same. Finally, on January 26,
2004 Judge Yadao issued an order, denying the Still, the Court notes that the prosecution skipped the CA
prosecution’s motion for reconsideration of its January 16, and filed its action directly with this Court, ignoring the
2004 Order not only for lack of merit but also for having principle of judicial hierarchy of courts. Although the
become moot and academic. Supreme Court, the CA, and the RTCs have concurrent
jurisdiction to issue a writ of certiorari, such concurrence
On February 16, 2004 the prosecution withdrew ex- does not give the People the unrestricted freedom of
abundanti cautela the notices of appeal that it filed in the choice of forum.10 In any case, the immense public
cases. Subsequently, on March 3, 2004 it filed the present interest in these cases, the considerable length of time that
special civil action of certiorari. has passed since the crime took place, and the numerous
times these cases have come before this Court probably
The Issues Presented warrant a waiver of such procedural lapse.

The prosecution presents the following issues: 1. Raffle of the Cases

1. Whether or not Executive Judge Dizon gravely abused The prosecution points out that the RTC of Quezon City
her discretion in allowing Criminal Cases 01-101102 to 12 to Executive Judge gravely abused her discretion when she
be re-raffled to other than among the RTC of Quezon placed Criminal Cases 01-101102 to 12 under a separate
City’s family courts. category which did not restrict their raffle to the city’s
special criminal and family courts in accordance with SC
2. Whether or not Judge Yadao gravely abused her Administrative Order 36-96. Further, the prosecution points
discretion when she took cognizance of Criminal Cases 01- out that she violated Administrative Order 19-98 when
101102 to 12 contrary to the prosecution’s view that such Branches 219 and 102 were left out of the raffle. The
cases fell under the jurisdiction of family courts. presiding judges of these two branches, both heinous
crimes courts eligible to receive cases by raffle, had just
3. Whether or not Judge Yadao gravely abused her been appointed to the CA.
discretion when she did not inhibit and disqualify herself
from taking cognizance of the cases. The records of the cases show nothing irregular in the
conduct of the raffle of the subject cases. The raffle
4. Whether or not Judge Yadao gravely abused her maintained a separate list for criminal and civil cases.
discretion when she dismissed the criminal actions on the Criminal cases cognizable by special criminal courts were
ground of lack of probable cause and barred the separately listed. Criminal Cases 01-101102 to 12 were
presentation of additional evidence in support of the given a separate heading, "Re-Raffle," but there was
prosecution’s motion for reconsideration.

57
nothing irregular in this since it merely indicated that the
cases were not being raffled for the first time. The prosecution claims that Judge Yadao committed
grave abuse of discretion in failing to inhibit herself from
The Executive Judge did not err in leaving out Branches hearing the cases against the respondents.
219 and 102 from raffle since these branches remained
without regularly appointed judges. Although the pairing The rules governing the disqualification of judges are
judges of these branches had authority to act on found, first, in Section 1, Rule 137 of the Rules of Court,
incidental, interlocutory, and urgent matters, this did not which provides:
mean that such branches should already be included in
the raffle of cases. Sec. 1. Disqualification of judges. – No judge or judicial
officer shall sit in any case in which he, or his wife or child,
Parenthetically, the prosecution was represented during is pecuniarily interested as heir, legatee, creditor or
the raffle yet it did not then object to the manner by which otherwise, or in which he is related to either party within the
it was conducted. The prosecution raised the question only sixth degree of consanguinity or affinity, or to counsel
when it filed this petition, a clear afterthought. within the fourth degree, computed according to the rules
of the civil law, or in which he has been executor,
2. Jurisdiction of Family Courts administrator, guardian, trustee or counsel, or in which he
has presided in any inferior court when his ruling or decision
The prosecution points out that, although this Court’s is the subject of review, without the written consent of all
October 7, 2003 Resolution directed a re-raffle of the cases parties in interest, signed by them and entered upon the
to a heinous crimes court, the prosecution in the meantime record.
amended the informations to reflect the fact that two of
the murder victims were minors. For this reason, the A judge may, in the exercise of his sound discretion,
Executive Judge should have raffled the cases to a family disqualify himself from sitting in a case, for just or valid
court pursuant to Section 5 of R.A. 8369. reasons other than those mentioned above.

The Court is not impervious to the provisions of Section 5 of and in Rule 3.12, Canon 3 of the Code of Judicial Conduct,
R.A. 8369, that vests in family courts jurisdiction over which states:
violations of R.A. 7610, which in turn covers murder cases
where the victim is a minor. Thus: Rule 3.12. – A judge should take no part in a proceeding
where the judge’s impartiality might reasonably be
Sec. 5. Jurisdiction of Family Courts. – The Family Courts questioned. These cases include among others,
shall have exclusive original jurisdiction to hear and decide proceedings where:
the following cases:
(a) the judge has personal knowledge of disputed
a) Criminal cases where one or more of the accused is evidentiary facts concerning the proceeding;
below eighteen (18) years of age but not less than nine (9)
years of age, or where one or more of the victims is a minor xxxx
at the time of the commission of the offense: Provided,
That if the minor is found guilty, the court shall promulgate (e) the judge knows the judge’s spouse or child has a
sentence and ascertain any civil liability which the financial interest, as heir, legatee, creditor, fiduciary, or
respondent may have incurred. (Emphasis supplied) otherwise, in the subject matter in controversy or in a party
to the proceeding, or any other interest that could be
Undoubtedly, in vesting in family courts exclusive original substantially affected by the outcome of the proceeding.
jurisdiction over criminal cases involving minors, the law but In every instance, the judge shall indicate the legal reason
seeks to protect their welfare and best interests. For this for inhibition.
reason, when the need for such protection is not
compromised, the Court is able to relax the rule. In several The first paragraph of Section 1, Rule 137 and Rule 3.12,
cases,11 for instance, the Court has held that the CA Canon 3 provide for the compulsory disqualification of a
enjoys concurrent jurisdiction with the family courts in judge while the second paragraph of Section 1, Rule 137
hearing petitions for habeas corpus involving minors. provides for his voluntary inhibition.

Here, the two minor victims, for whose interests the people The matter of voluntary inhibition is primarily a matter of
wanted the murder cases moved to a family court, are conscience and sound discretion on the part of the judge
dead. As respondents aptly point out, there is no living since he is in a better position to determine whether a
minor in the murder cases that require the special given situation would unfairly affect his attitude towards
attention and protection of a family court. In fact, no minor the parties or their cases. The mere imputation of bias,
would appear as party in those cases during trial since the partiality, and prejudgment is not enough ground, absent
minor victims are represented by their parents who had clear and convincing evidence that can overcome the
become the real private offended parties. presumption that the judge will perform his duties
according to law without fear or favor. The Court will not
3. Inhibition of Judge Yadao disqualify a judge based on speculations and surmises or

58
the adverse nature of the judge’s rulings towards those findings when the latter conducted its preliminary
who seek to inhibit him.12 investigation of the crime of robbery in 1996. Judge Yadao
gave weight to the affidavits submitted in that earlier
Here, the prosecution contends that Judge Yadao should preliminary investigation when such documents are
have inhibited herself for improperly submitting to a public proper for presentation during the trial of the cases. The
interview on the day following her dismissal of the criminal prosecution added that the affidavits of P/S Insp. Abelardo
cases against the respondents. But the Court finds nothing Ramos and SPO1 Wilmor B. Medes reasonably explained
basically reprehensible in such interview. Judge Yadao’s the prior inconsistent affidavits they submitted before the
dismissal of the multiple murder cases aroused natural Ombudsman.
public interest and stirred the media into frenzy for correct
information. Judge Yadao simply accommodated, not The general rule of course is that the judge is not required,
sought, the requests for such an interview to clarify the when determining probable cause for the issuance of
basis of her order. There is no allegation that she gave out warrants of arrests, to conduct a de novo hearing. The
false information. To be sure, the prosecution never once judge only needs to personally review the initial
accused her of making public disclosures regarding the determination of the prosecutor finding a probable cause
merits of those cases prior to her order dismissing such to see if it is supported by substantial evidence.13
cases.
But here, the prosecution conceded that their own
The prosecution also assails as constituting bias Judge witnesses tried to explain in their new affidavits the
Yadao’s statement that a very close relative stood to be inconsistent statements that they earlier submitted to the
promoted if she was to issue a warrant of arrest against the Office of the Ombudsman. Consequently, it was not
respondents. But this statement merely shows that she unreasonable for Judge Yadao, for the purpose of
cannot be dissuaded by some relative who is close to her. determining probable cause based on those affidavits, to
How can this constitute bias? Besides, there is no evidence hold a hearing and examine the inconsistent statements
that the close relative she referred to was her spouse or and related documents that the witnesses themselves
child which would be a mandatory ground for brought up and were part of the records. Besides, she
disqualification. received no new evidence from the respondents.14

Further, the prosecution claims that Judge Yadao The public prosecutor submitted the following affidavits
prejudged its motion for reconsideration when she said in and documents along with the criminal informations to
her comment to the administrative complaint against her enable Judge Yadao to determine the presence of
that such motion was merely the prosecution’s stubborn probable cause against the respondents:
insistence on the existence of probable cause against the
respondents. The comment could of course not be 1. P/Insp. Ysmael S. Yu’s affidavit of March 24, 200115 in
regarded as a prejudgment of the issue since she had which he said that on May 17, 1995 respondent Canson,
precisely already issued an order holding that the NCR Command Head, ordered him to form two teams that
complainant’s evidence failed to establish probable would go after suspected Kuratong Baleleng Gang
cause against the respondents. And there is nothing wrong members who were seen at the Superville Subdivision in
about characterizing a motion for reconsideration as a Parañaque City. Yu headed the assault team while Marlon
"stubborn" position taken by the party who filed it. Judge Sapla headed the perimeter defense. After the police
Yadao did not characterize the motion as wholly team apprehended eight men inside the safe house, it
unjustified at the time she filed her comment. turned them over to their investigating unit. The following
day, Yu just learned that the men and three others were
4. Dismissal of the Criminal Cases killed in a shoot-out with the police in Commonwealth
Avenue in Quezon City.
The prosecution claims that Judge Yadao gravely abused
her discretion when she set the motions for determination 2. P/S Insp. Abelardo Ramos’ affidavit of March 24, 200116
of probable cause for hearing, deferred the issuance of in which he said that he was part of the perimeter defense
warrants of arrest, and allowed the defense to mark its during the Superville operation. After the assault team
evidence and argue its case. The prosecution stresses that apprehended eight male suspects, it brought them to
under Section 6, Rule 112 of the Rules of Court Judge Camp Crame in two vans. Ramos then went to the office
Yadao’s duty was to determine probable cause for the of respondent Zubia, TMC Head, where he saw
purpose of issuing the arrest warrants solely on the basis of respondents Lacson, Acop, Laureles, Villacorte and other
the investigating prosecutor’s resolution as well as the police officers.
informations and their supporting documents. And, if she
had some doubts as to the existence of probable cause, According to Ramos, Zubia said that the eight suspects
the rules required her to order the investigating prosecutor were to be brought to Commonwealth Avenue and killed
to present additional evidence to support the finding of in a supposed shoot-out and that this action had been
probable cause within five days from notice. cleared with higher authorities, to which remark Lacson
nodded as a sign of approval. Before Ramos left the
Rather than take limited action, said the prosecution, meeting, Lacson supposedly told him, "baka may
Judge Yadao dug up and adopted the Ombudsman’s mabuhay pa diyan." Ramos then boarded an L-300 van

59
with his men and four male suspects. In the early morning included a comprehensive list of police personnel from
of May 18, 1995, they executed the plan and gunned Task Force Habagat (Lacson), Traffic Management
down the suspects. A few minutes later, P/S Insp. Glenn G. Command (Zubia), Criminal Investigation Command
Dumlao and his men arrived and claimed responsibility for (Acop), and National Capital Region Command (Canson)
the incident. who were involved. The names of Ramos, Medes, Enad,
and Seno were not on that list. Notably, only Yu’s name,
3. SPO1 Wilmor B. Medes’ affidavit of April 24, 200117 in among the new set of witnesses, was on that list. Since an
which he corroborated Ramos’ statements. Medes said after-battle report usually serves as basis for
that he belonged to the same team that arrested the commendations and promotions, any omitted name
eight male suspects. He drove the L-300 van in going to would hardly have gone unchallenged.
Commonwealth Avenue where the suspects were killed.
Third. Ramos, whose story appeared to be the most
4. Mario C. Enad’s affidavit of August 8, 199518 in which he significant evidence against the respondents, submitted in
claimed having served as TMC civilian agent. At around the course of the preliminary investigation that the Office
noon of May 17, 1995, he went to Superville Subdivision of the Ombudsman conducted in a related robbery
together with respondents Dumlao, Tannagan, and Nuas. charge against the police officers involved a counter-
Dumlao told Enad to stay in the car and observe what affidavit. He claimed in that counter-affidavit that he was
went on in the house under surveillance. Later that night, neither in Superville Subdivision nor Commonwealth
other police officers arrived and apprehended the men in Avenue during the Kuratong Baleleng operations since he
the house. Enad went in and saw six men lying on the floor was in Bulacan on May 17, 1995 and at his home on May
while the others were handcuffed. Enad and his 18.22 Notably, Medes claimed in a joint counter-affidavit
companions left Sucat in the early morning of May 18, that he was on duty at the TMC headquarters at Camp
1995. He fell asleep along the way but was awaken by Crame on May 17 and 18.23
gunshots. He saw Dumlao and other police officers fire
their guns at the L-300 van containing the apprehended Fourth. The Office of the Ombudsman, looking at the
suspects. whole picture and giving credence to Ramos and Medes’
statements, dismissed the robbery case. More, it excluded
5. SPO2 Noel P. Seno’s affidavit of May 31, 200119 in which Ramos from the group of officers that it charged with the
he corroborated what Ramos said. Seno claimed that he murder of the suspected members of the Kuratong
was part of the advance party in Superville Subdivision Baleleng Gang. Under the circumstances, the Court
and was also in Commonwealth Avenue when the cannot be less skeptical than Judge Yadao was in
suspected members of the Kuratong Baleleng Gang were doubting the sudden reversal after six years of testimony of
killed. these witnesses.

6. The PNP ABRITG After Operations Report of May 31, Of course, Yu may have taken part in the subject
199520 which narrated the events that took place on May operation but, as he narrated, his role was limited to
17 and 18, 1995. This report was submitted by Lacson, cornering and arresting the suspected Kuratong Baleleng
Zubia, Acop and Canson. Gang members at their safe house in Superville
Subdivision. After his team turned the suspects over to an
7. The PNP Medico-Legal Reports21 which stated that the investigating unit, he no longer knew what happened to
suspected members of the Kuratong Baleleng Gang them.
tested negative for gunpowder nitrates.
Fifth. True, the PNP Medico-Legal Reports showed that the
The Court agrees with Judge Yadao that the above Kuratong Baleleng Gang members tested negative for
affidavits and reports, taken together with the other gunpowder nitrates. But this finding cannot have any legal
documents of record, fail to establish probable cause significance for the purpose of the preliminary
against the respondents. investigation of the murder cases against the respondents
absent sufficient proof that they probably took part in
First. Evidently, the case against respondents rests on the gunning those gang members down.
testimony of Ramos, corroborated by those of Medes,
Enad, and Seno, who supposedly heard the commanders The prosecution points out that, rather than dismiss the
of the various units plan the killing of the Kuratong Baleleng criminal action outright, Judge Yadao should have
Gang members somewhere in Commonwealth Avenue in ordered the panel of prosecutors to present additional
Quezon City and actually execute such plan. Yu’s evidence pursuant to Section 6, Rule 112 of the Rules of
testimony is limited to the capture of the gang members Court which provides:
and goes no further. He did not see them killed.
Sec. 6. When warrant of arrest may issue. – (a) By the
Second. Respecting the testimonies of Ramos, Medes, Regional Trial Court. – Within ten (10) days from the filing of
Enad, and Seno, the prosecution’s own evidence—the the complaint or information, the judge shall personally
PNP ABRITG’s After Operations Report of May 31, 1995— evaluate the resolution of the prosecutor and its
shows that these men took no part in the operations supporting evidence. He may immediately dismiss the
against the Kuratong Baleleng Gang members. The report case if the evidence on record clearly fails to establish

60
probable cause. If he finds probable cause, he shall issue
a warrant of arrest, or a commitment order if the accused xxxx
has already been arrested pursuant to a warrant issued by
the judge who conducted the preliminary investigation or (b) To enforce order in proceedings before it, or before a
when the complaint or information was filed pursuant to person or persons empowered to conduct a judicial
section 7 of this Rule. In case of doubt on the existence of investigation under its authority;
probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from xxxx
notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of (d) To control, in furtherance of justice, the conduct of its
information. ministerial officers, and of all other persons in any manner
connected with a case before it, in every manner
Section 6, Rule 112 of the Rules of Court gives the trial court appertaining thereto;
three options upon the filing of the criminal information: (1)
dismiss the case if the evidence on record clearly failed to xxxx
establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to (g) To amend and control its process and orders so as to
present additional evidence within five days from notice in make them conformable to law and justice;
case of doubt as to the existence of probable cause.24
xxxx
But the option to order the prosecutor to present
additional evidence is not mandatory. The court’s first There is nothing arbitrary about Judge Yadao’s policy of
option under the above is for it to "immediately dismiss the allowing only one public prosecutor and one private
case if the evidence on record clearly fails to establish prosecutor to address the court during the hearing for
probable cause." That is the situation here: the evidence determination of probable cause but permitting counsels
on record clearly fails to establish probable cause against representing the individual accused to do so. A criminal
the respondents. action is prosecuted under the direction and control of the
public prosecutor.26 The burden of establishing probable
It is only "in case of doubt on the existence of probable cause against all the accused is upon him, not upon the
cause" that the judge may order the prosecutor to present private prosecutors whose interests lie solely in their clients’
additional evidence within five days from notice. But that damages claim. Besides, the public and the private
is not the case here. Discounting the affidavits of Ramos, prosecutors take a common position on the issue of
Medes, Enad, and Seno, nothing is left in the record that probable cause. On the other hand, each of the accused
presents some doubtful probability that respondents is entitled to adopt defenses that are personal to him.
committed the crime charged. PNP Director Leandro
Mendoza sought the revival of the cases in 2001, six years As for the prohibition against the prosecution’s private
after it happened. It would have been ridiculous to recording of the proceedings, courts usually disallows such
entertain the belief that the police could produce new recordings because they create an unnecessary
witnesses in the five days required of the prosecution by distraction and if allowed, could prompt every lawyer,
the rules. party, witness, or reporter having some interest in the
proceeding to insist on being given the same privilege.
In the absence of probable cause to indict respondents Since the prosecution makes no claim that the official
for the crime of multiple murder, they should be insulated recording of the proceedings by the court’s stenographer
from the tribulations, expenses and anxiety of a public has been insufficient, the Court finds no grave abuse of
trial.25 discretion in Judge Yadao’s policy against such
extraneous recordings.
5. Policies Adopted for Conduct of Court Hearing
WHEREFORE, the Court DISMISSES this petition and AFFIRMS
The prosecution claims that Judge Yadao arbitrarily the following assailed Orders of the Regional Trial Court of
recognized only one public prosecutor and one private Quezon City, Branch 81 in Criminal Cases 01-101102 to 12:
prosecutor for all the offended parties but allowed each
of the counsels representing the individual respondents to 1. the Order dated November 12, 2003 which denied the
be heard during the proceedings before it. She also prayer for re-raffle, granted the motions for determination
unjustifiably prohibited the prosecution’s use of tape of probable cause, and dismissed the criminal cases;
recorders.
2. the Order dated January 16, 2004 which granted the
But Section 5, Rule 135 of the Rules of Court gives the trial motion of the respondents for the immediate resolution of
court ample inherent and administrative powers to the three pending incidents before the court;
effectively control the conduct of its proceedings. Thus:
3. the Order dated January 21, 2004 which denied the
Sec. 5. Inherent powers of court. — Every court shall have motion to recuse and the urgent supplemental motion for
power: compulsory disqualification;

61
Adm. Case No. 7549 August 29, 2008
4. the Order dated January 22, 2004 which denied the
motion for reconsideration of the Order dated November AURELIO M. SIERRA, complainant,
12, 2003; and
vs.
5. the Order dated January 26, 2004 which denied the
JHOSEP Y. LOPEZ, City Prosecutor of Manila,
motion for reconsideration of the January 16, 2004 Order. EUFROCINO SULLA, 1st Assistant City Prosecutor
(ACP), ACP ALEXANDER T. YAP, ACP MARLO
SO ORDERED. CAMPANILLA, and ACP ARMANDO VELASCO,
respondents.

DECISION

NACHURA, J.:

The instant controversy arose from a complaint for


dereliction of duty and gross ignorance of the law by
Aurelio M. Sierra against City Prosecutor of Manila Jhosep
Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino Sulla,
Assistant City Prosecutors Alexander Yap, Marlo
Campanilla and Armando Velasco.

The facts of the case are as follows:

On July 27, 2006 and August 1, 2006, complainant Aurelio


M. Sierra filed several cases before the Office of the City
Prosecutor of Manila for Misrepresentation through Deceit
and Syndicated Large Scale Fraud in Land Titling with
Conspiracy, Land Grabbing, Falsification of Public
Document and Economic Sabotage.

These cases were first assigned to ACP Alexander T. Yap.


The principal respondents therein, namely: Alfredo C.
Ramos, Presentacion Ramos, George S.K. Ty, Atty.
Emmanuel Leonardo, and a certain Mr. Cayaban, did not
appear during the scheduled hearing. However, Alfredo
and Presentacion Ramos appeared in the morning of that
day ahead of the complainant in which they submitted
their respective counter-affidavits, subscribed and sworn
to before ACP Yap. The respondents asked that they be
allowed to submit their counter-affidavits ahead of the
scheduled hearing because they had an urgent matter to
attend to in the afternoon. In the case of George S.K. Ty
and Mr. Cayaban, their respective counter-affidavits were
submitted by their lawyers during the scheduled hearing in
the afternoon, already subscribed and sworn to before a
Pasig Prosecutor. Atty. Leonardo did not submit any
counter-affidavit.

Because of ACP Yap’s failure to require the presence of


respondents in said cases simultaneously with the
complainant, Mr. Sierra asked for the prosecutor’s
inhibition. The cases were then re-raffled to the respondent
ACP Marlo Campanilla who likewise did not require the
presence of the respondents in the preliminary
investigation. Because of this, he too was asked to inhibit
from the cases by complainant.

The cases were then re-raffled to ACP Armando Velasco


who also handled the cases in the same manner as the
two other prosecutors before him. City Prosecutor Jhosep
Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the

62
correctness of the manner in which their investigating available for examination or copying by the respondent at
prosecutors handled the cases. his expense.

On April 26, 2007, Sierra filed a complaint with the Supreme Objects as evidence need not be furnished a party but
Court for dereliction of duty and gross ignorance of the shall be made available for examination, copying, or
law against City Prosecutor Lopez, 1st ACP Sulla, ACP Yap, photographing at the expense of the requesting party.
ACP Campanilla, and ACP Velasco.
(c) Within ten (10) days from receipt of the subpoena with
In his complaint, Sierra raises the following questions of law: the complaint and supporting affidavits and documents,
(1) whether the parties must appear together before the the respondent shall submit his counter-affidavit and that
investigating prosecutor during preliminary investigation; of his witnesses and other supporting documents relied
(2) whether the counter-affidavits of the respondents upon for his defense. The counter-affidavits, shall be
should be sworn to only before the investigating subscribed and sworn to and certified as provided in
prosecutor; and (3) whether the investigating prosecutor paragraph (a) of this section, with copies thereof furnished
erred in denying the request of the complainant for by him to the complainant. The respondent shall not be
clarificatory questioning. allowed to file a motion to dismiss in lieu of a counter-
affidavit.
The Supreme Court Third Division then issued a Resolution
dated July 25, 2008 requiring respondents to comment on (d) If the respondent cannot be subpoenaed, or if
the complaint. subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve
In compliance with the Honorable Court’s order, the complaint based on the evidence presented by the
respondents filed their Comment dated March 7, 2008 complainant.
stating that they handled the cases properly and in
accordance with what was provided by law. They also (e) The investigating officer may set a hearing if there are
argued that they had not committed any dereliction of facts and issues to be clarified from a party or a witness.
duty and gross ignorance of the law. The parties can be present at the hearing but without the
right to examine or cross-examine. They may, however,
We find no merit in the complaint. submit to the investigating officer questions which may be
asked to the party or witness concerned.
Rule 112, particularly Section 3 of the Rules of Court, lays
down the basic procedure in preliminary investigation, as The hearing shall be held within ten (10) days from
follows: submission of the counter-affidavits and other documents
or from the expiration of the period for their submission. It
Sec. 3. Procedure. – The preliminary investigation shall be shall be terminated within five (5) days.
conducted in the following manner:
(f) Within ten (10) days after the investigation, the
(a) The complaint shall state the address of the respondent investigating officer shall determine whether or not there is
and shall be accompanied by the affidavits of the sufficient ground to hold the respondent for trial.
complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in This provision of the Rules does not require a confrontation
such number of copies as there are respondents, plus two between the parties. Preliminary investigation is ordinarily
(2) copies for the official file. The affidavits shall be conducted through submission of affidavits and
subscribed and sworn to before any prosecutor or supporting documents, through the exchange of
government official authorized to administer oath, or, in pleadings.
their absence or unavailability, before a notary public,
each of whom must certify that he personally examined In Rodis, Sr. v. Sandiganbayan1 we ruled that -
the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits. (the New Rules on Criminal Procedure) do not require as a
condition sine qua non to the validity of the proceedings (
(b) Within ten (10) days after the filing of the complaint, the in the preliminary investigation) the presence of the
investigating officer shall either dismiss it if he finds no accused for as long as efforts to reach him were made,
ground to continue with the investigation, or issue a and an opportunity to controvert evidence of the
subpoena to the respondent attaching to it a copy of the complainant is accorded him. The obvious purpose of the
complaint and its supporting affidavits and documents. rule is to block attempts of unscrupulous respondents to
thwart the prosecution of offenses by hiding themselves or
The respondent shall have the right to examine the by employing dilatory tactics.
evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense. Since confrontation between the parties is not imperative,
If the evidence is voluminous, the complainant may be it follows that it is not necessary that the counter-affidavit
required to specify those which he intends to present of respondent be sworn to before the investigating
against the respondent, and these shall be made prosecutor himself. It can be sworn to before another

63
prosecutor. In fact, this is specifically provided in G.R. No. 168380 February 8, 2007
paragraph (c) of Sec. 3, which states that the "counter-
affidavit shall be subscribed and sworn to and certified as MANUEL V. BAVIERA, Petitioner,
provided in paragraph (a) of this section x x x"; and
vs.
paragraph (a), provides:
ESPERANZA PAGLINAWAN, in her capacity as
the affidavits shall be subscribed and sworn to before any Department of Justice State Prosecutor; LEAH C.
prosecutor or government official or in their absence or TANODRA-ARMAMENTO, In her capacity as Assistant
unavailability, before a notary public x x x. Chief State Prosecutor and Chairwoman of Task
Force on Business Scam; JOVENCITO R. ZUNO, in his
Lastly, we hold that the investigating prosecutors did not capacity as Department of Justice Chief State
abuse their discretion when they denied the request of the Prosecutor; STANDARD CHARTERED BANK, PAUL
complainant for the conduct of clarificatory questioning. SIMON MORRIS, AJAY KANWAL, SRIDHAR RAMAN,
Under paragraph (e) of Section 3 above, the conduct of
MARIVEL GONZALES, CHONA REYES, MARIA ELLEN
clarificatory questioning is discretionary upon the
prosecutor. Indeed, we already held in Webb v. De Leon2
VICTOR, and ZENAIDA IGLESIAS, Respondents.
that the decision to call witnesses for clarificatory questions
is addressed to the sound discretion of the investigator, x-----------------------------x
and the investigator alone.
G.R. No. 170602 February 8, 2007
WHEREFORE, premises considered, the complaint is DENIED
for lack of merit. MANUEL V. BAVIERA, Petitioner,
vs.
SO ORDERED.
STANDARD CHARTERED BANK, BRYAN K. SANDERSON,
THE RIGHT HONORABLE LORD STEWARTBY, EVAN
MERVYN DAVIES, MICHAEL BERNARD DENOMA,
CHRISTOPHER AVEDIS KELJIK, RICHARD HENRY
MEDDINGS, KAI NARGOLWALA, PETER ALEXANDER
SANDS, RONNIE CHI CHUNG CHAN, SIR CK CHOW,
BARRY CLARE, HO KWON PING, RUDOLPH HAROLD
PETER ARKHAM, DAVID GEORGE MOIR, HIGH EDWARD
NORTON, SIR RALPH HARRY ROBINS, ANTHONY
WILLIAM PAUL STENHAM (Standard Chartered Bank
Chairman, Deputy Chairman, and Members of the
Board), SHERAZAM MAZARI (Group Regional Head
for Consumer Banking), PAUL SIMON MORRIS, AJAY
KANWAL, SRIDHAR RAMAN, MARIVEL GONZALES,
CHONA REYES, ELLEN VICTOR, RAMONA H. BERNAD,
DOMINGO CARBONELL, JR., and ZENAIDA IGLESIAS
(Standard Chartered Bank-Philippines Branch
Heads/Officers), Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us are two consolidated Petitions for Review on


Certiorari assailing the Decisions of the Court of Appeals in
CA-G.R. SP No. 873281 and in CA-G.R. SP No. 85078.2

The common factual antecedents of these cases as


shown by the records are:

Manuel Baviera, petitioner in these cases, was the former


head of the HR Service Delivery and Industrial Relations of
Standard Chartered Bank-Philippines (SCB), one of herein
respondents. SCB is a foreign banking corporation duly
licensed to engage in banking, trust, and other fiduciary
business in the Philippines. Pursuant to Resolution No. 1142
dated December 3, 1992 of the Monetary Board of the
64
Bangko Sentral ng Pilipinas (BSP), the conduct of SCB’s On September 2, 1997, the SEC issued a Cease and Desist
business in this jurisdiction is subject to the following Order against SCB, holding that its services violated
conditions: Sections 4(a)7 and 198 of the Revised Securities Act.

1. At the end of a one-year period from the date the SCB Meantime, the SEC indorsed ICAP’s complaint and its
starts its trust functions, at least 25% of its trust accounts supporting documents to the BSP.
must be for the account of non-residents of the Philippines
and that actual foreign exchange had been remitted into On October 31, 1997, the SEC informed the Secretary of
the Philippines to fund such accounts or that the Finance that it withdrew GTPMF securities from the market
establishment of such accounts had reduced the and that it will not sell the same without the necessary
indebtedness of residents (individuals or corporations or clearances from the regulatory authorities.
government agencies) of the Philippines to non-residents.
At the end of the second year, the above ratio shall be Meanwhile, on August 17, 1998, the BSP directed SCB not
50%, which ratio must be observed continuously to include investments in global mutual funds issued
thereafter; abroad in its trust investments portfolio without prior
registration with the SEC.
2. The trust operations of SCB shall be subject to all existing
laws, rules and regulations applicable to trust services, On August 31, 1998, SCB sent a letter to the BSP confirming
particularly the creation of a Trust Committee; and that it will withdraw third-party fund products which could
be directly purchased by investors.
3. The bank shall inform the appropriate supervising and
examining department of the BSP at the start of its However, notwithstanding its commitment and the BSP
operations. directive, SCB continued to offer and sell GTPMF securities
in this country. This prompted petitioner to enter into an
Apparently, SCB did not comply with the above Investment Trust Agreement with SCB wherein he
conditions. Instead, as early as 1996, it acted as a stock purchased US$8,000.00 worth of securities upon the bank’s
broker, soliciting from local residents foreign securities promise of 40% return on his investment and a guarantee
called "GLOBAL THIRD PARTY MUTUAL FUNDS" (GTPMF), that his money is safe. After six (6) months, however,
denominated in US dollars. These securities were not petitioner learned that the value of his investment went
registered with the Securities and Exchange Commission down to US$7,000.00. He tried to withdraw his investment
(SEC). These were then remitted outwardly to SCB-Hong but was persuaded by Antonette de los Reyes of SCB to
Kong and SCB-Singapore. hold on to it for another six (6) months in view of the
possibility that the market would pick up.
SCB’s counsel, Romulo Mabanta Buenaventura Sayoc
and Delos Angeles Law Office, advised the bank to Meanwhile, on November 27, 2000, the BSP found that SCB
proceed with the selling of the foreign securities although failed to comply with its directive of August 17, 1998.
unregistered with the SEC, under the guise of a Consequently, it was fined in the amount of ₱30,000.00.
"custodianship agreement;" and should it be questioned, it
shall invoke Section 723 of the General Banking Act The trend in the securities market, however, was bearish
(Republic Act No.337).4 In sum, SCB was able to sell GTPMF and the worth of petitioner’s investment went down further
securities worth around ₱6 billion to some 645 investors. to only US$3,000.00.

However, SCB’s operations did not remain unchallenged. On October 26, 2001, petitioner learned from Marivel
On July 18, 1997, the Investment Capital Association of the Gonzales, head of the SCB Legal and Compliance
Philippines (ICAP) filed with the SEC a complaint alleging Department, that the latter had been prohibited by the
that SCB violated the Revised Securities Act,5 particularly BSP to sell GPTMF securities. Petitioner then filed with the
the provision prohibiting the selling of securities without BSP a letter-complaint demanding compensation for his
prior registration with the SEC; and that its actions are lost investment. But SCB denied his demand on the ground
potentially damaging to the local mutual fund industry. that his investment is "regular."

In its answer, SCB denied offering and selling securities, On July 15, 2003, petitioner filed with the Department of
contending that it has been performing a "purely Justice (DOJ), represented herein by its prosecutors, public
informational function" without solicitations for any of its respondents, a complaint charging the above-named
investment outlets abroad; that it has a trust license and officers and members of the SCB Board of Directors and
the services it renders under the "Custodianship other SCB officials, private respondents, with syndicated
Agreement" for offshore investments are authorized by estafa, docketed as I.S. No. 2003-1059.
Section 726 of the General Banking Act; that its clients
were the ones who took the initiative to invest in securities; For their part, private respondents filed the following as
and it has been acting merely as an agent or "passive counter-charges against petitioner: (1) blackmail and
order taker" for them. extortion, docketed as I.S. No. 2003-1059-A; and blackmail
and perjury, docketed as I.S. No. 2003-1278.

65
On September 29, 2003, petitioner also filed a complaint Meanwhile, on February 21, 2005, the Court of Appeals
for perjury against private respondents Paul Simon Morris rendered its Decision in CA-G.R. SP No. 85078 (involving
and Marivel Gonzales, docketed as I.S. No. 2003-1278-A. petitioner’s charges and respondents’ counter charges)
dismissing the petition on the ground that the purpose of a
On December 4, 2003, the SEC issued a Cease and Desist petition for certiorari is not to evaluate and weigh the
Order against SCB restraining it from further offering, parties’ evidence but to determine whether the assailed
soliciting, or otherwise selling its securities to the public until Resolution of the DOJ was issued with grave abuse of
these have been registered with the SEC. discretion tantamount to lack of jurisdiction. Again,
petitioner moved for a reconsideration but it was denied
Subsequently, the SEC and SCB reached an amicable in a Resolution of November 22, 2005.
settlement.1awphi1.net
Hence, the instant petitions for review on certiorari.
On January 20, 2004, the SEC lifted its Cease and Desist
Order and approved the ₱7 million settlement offered by For our resolution is the fundamental issue of whether the
SCB. Thereupon, SCB made a commitment not to offer or Court of Appeals erred in concluding that the DOJ did not
sell securities without prior compliance with the commit grave abuse of discretion in dismissing petitioner’s
requirements of the SEC. complaint in I.S. 2004-229 for violation of Securities
Regulation Code and his complaint in I.S. No. 2003-1059 for
On February 7, 2004, petitioner filed with the DOJ a syndicated estafa.
complaint for violation of Section 8.19 of the Securities
Regulation Code against private respondents, docketed G.R. No 168380
as I.S. No. 2004-229.
Re: I.S. No. 2004-229
On February 23, 2004, the DOJ rendered its Joint
Resolution10 dismissing petitioner’s complaint for For violation of the Securities Regulation Code
syndicated estafa in I.S. No. 2003-1059; private
respondents’ complaint for blackmail and extortion in I.S. Section 53.1 of the Securities Regulation Code provides:
No. 2003-1059-A; private respondents’ complaint for
blackmail and perjury in I.S. No. 2003-1278; and petitioner’s SEC. 53. Investigations, Injunctions and Prosecution of
complaint for perjury against private respondents Morris Offenses.–
and Gonzales in I.S. No. 2003-1278-A.
53. 1. The Commission may, in its discretion, make such
Meanwhile, in a Resolution11 dated April 4, 2004, the DOJ investigation as it deems necessary to determine whether
dismissed petitioner’s complaint in I.S. No. 2004-229 any person has violated or is about to violate any provision
(violation of Securities Regulation Code), holding that it of this Code, any rule, regulation or order thereunder, or
should have been filed with the SEC. any rule of an Exchange, registered securities association,
clearing agency, other self-regulatory organization, and
Petitioner’s motions to dismiss his complaints were denied may require or permit any person to file with it a statement
by the DOJ. Thus, he filed with the Court of Appeals a in writing, under oath or otherwise, as the Commission shall
petition for certiorari, docketed as CA-G.R. SP No. 85078. determine, as to all facts and circumstances concerning
He alleged that the DOJ acted with grave abuse of the matter to be investigated. The Commission may
discretion amounting to lack or excess of jurisdiction in publish information concerning any such violations and to
dismissing his complaint for syndicated estafa. investigate any fact, condition, practice or matter which it
may deem necessary or proper to aid in the enforcement
He also filed with the Court of Appeals a separate petition of the provisions of this Code, in the prescribing of rules and
for certiorari assailing the DOJ Resolution dismissing I.S. No. regulations thereunder, or in securing information to serve
2004-229 for violation of the Securities Regulation Code. as a basis for recommending further legislation concerning
This petition was docketed as CA-G.R. SP No. 87328. the matters to which this Code relates: Provided, however,
Petitioner claimed that the DOJ acted with grave abuse That any person requested or subpoenaed to produce
of discretion tantamount to lack or excess of jurisdiction in documents or testify in any investigation shall
holding that the complaint should have been filed with the simultaneously be notified in writing of the purpose of such
SEC. investigation: Provided, further, That all criminal complaints
for violations of this Code and the implementing rules and
On January 7, 2005, the Court of Appeals promulgated its regulations enforced or administered by the Commission
Decision dismissing the petition.1avvphi1.net It sustained shall be referred to the Department of Justice for
the ruling of the DOJ that the case should have been filed preliminary investigation and prosecution before the
initially with the SEC. proper court: Provided, furthermore, That in instances
where the law allows independent civil or criminal
Petitioner filed a motion for reconsideration but it was proceedings of violations arising from the act, the
denied in a Resolution dated May 27, 2005. Commission shall take appropriate action to implement
the same: Provided, finally; That the investigation,
prosecution, and trial of such cases shall be given priority.

66
The Court of Appeals held that under the above provision, Concomitant with his authority and power to control the
a criminal complaint for violation of any law or rule prosecution of criminal offenses, the public prosecutor is
administered by the SEC must first be filed with the latter. If vested with the discretionary power to determine whether
the Commission finds that there is probable cause, then it a prima facie case exists or not.15 This is done through a
should refer the case to the DOJ. Since petitioner failed to preliminary investigation designed to secure the
comply with the foregoing procedural requirement, the respondent from hasty, malicious and oppressive
DOJ did not gravely abuse its discretion in dismissing his prosecution. A preliminary investigation is essentially an
complaint in I.S. No. 2004-229. inquiry to determine whether (a) a crime has been
committed; and (b) whether there is probable cause that
A criminal charge for violation of the Securities Regulation the accused is guilty thereof.16 In Pontejos v. Office of the
Code is a specialized dispute. Hence, it must first be Ombudsman,17 probable cause is defined as such facts
referred to an administrative agency of special and circumstances that would engender a well-founded
competence, i.e., the SEC. Under the doctrine of primary belief that a crime has been committed and that the
jurisdiction, courts will not determine a controversy respondent is probably guilty thereof and should be held
involving a question within the jurisdiction of the for trial. It is the public prosecutor who determines during
administrative tribunal, where the question demands the the preliminary investigation whether probable cause
exercise of sound administrative discretion requiring the exists. Thus, the decision whether or not to dismiss the
specialized knowledge and expertise of said criminal complaint against the accused depends on the
administrative tribunal to determine technical and sound discretion of the prosecutor.
intricate matters of fact.12 The Securities Regulation Code
is a special law. Its enforcement is particularly vested in the Given this latitude and authority granted by law to the
SEC. Hence, all complaints for any violation of the Code investigating prosecutor, the rule in this jurisdiction is that
and its implementing rules and regulations should be filed courts will not interfere with the conduct of preliminary
with the SEC. Where the complaint is criminal in nature, the investigations or reinvestigations or in the determination of
SEC shall indorse the complaint to the DOJ for preliminary what constitutes sufficient probable cause for the filing of
investigation and prosecution as provided in Section 53.1 the corresponding information against an offender.18
earlier quoted. Courts are not empowered to substitute their own
judgment for that of the executive branch.19 Differently
We thus agree with the Court of Appeals that petitioner stated, as the matter of whether to prosecute or not is
committed a fatal procedural lapse when he filed his purely discretionary on his part, courts cannot compel a
criminal complaint directly with the DOJ. Verily, no grave public prosecutor to file the corresponding information,
abuse of discretion can be ascribed to the DOJ in upon a complaint, where he finds the evidence before
dismissing petitioner’s complaint. him insufficient to warrant the filing of an action in court. In
sum, the prosecutor’s findings on the existence of probable
G.R. No. 170602 cause are not subject to review by the courts, unless these
are patently shown to have been made with grave abuse
Re: I.S. No. 2003-1059 for of discretion.20

Syndicated Estafa Grave abuse of discretion is such capricious and whimsical


exercise of judgment on the part of the public officer
Section 5, Rule 110 of the 2000 Rules of Criminal Procedure, concerned which is equivalent to an excess or lack of
as amended, provides that all criminal actions, jurisdiction. The abuse of discretion must be as patent and
commenced by either a complaint or an information, shall gross as to amount to an evasion of a positive duty or a
be prosecuted under the direction and control of a public virtual refusal to perform a duty enjoined by law, or to act
prosecutor. This mandate is founded on the theory that a at all in contemplation of law, as where the power is
crime is a breach of the security and peace of the people exercised in an arbitrary and despotic manner by reason
at large, an outrage against the very sovereignty of the of passion or hostility.21
State. It follows that a representative of the State shall
direct and control the prosecution of the offense.13 This In determining whether the DOJ committed grave abuse
representative of the State is the public prosecutor, whom of discretion, it is expedient to know if the findings of fact
this Court described in the old case of Suarez v. Platon,14 of herein public prosecutors were reached in an arbitrary
as: or despotic manner.

[T]he representative not of an ordinary party to a The Court of Appeals held that petitioner’s evidence is
controversy, but of a sovereignty whose obligation to insufficient to establish probable cause for syndicated
govern impartially is as compelling as its obligation to estafa. There is no showing from the record that private
govern at all; and whose interest, therefore, in a criminal respondents herein did induce petitioner by false
prosecution is not that it shall win a case, but that justice representations to invest in the GTPMF securities. Nor did
shall be done. As such, he is in a peculiar and very definite they act as a syndicate to misappropriate his money for
sense a servant of the law, the twofold aim of which is that their own benefit. Rather, they invested it in accordance
guilt shall not escape or innocence suffers.

67
with his written instructions. That he lost his investment is not G.R. No. 143591 May 5, 2010
their fault since it was highly speculative.
TEODORO C. BORLONGAN, JR., CORAZON M.
Records show that public respondents examined
BEJASA, ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO
petitioner’s evidence with care, well aware of their duty to
prevent material damage to his constitutional right to
H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES,
liberty and fair play. In Suarez previously cited, this Court JR., and BEN YU LIM, JR., Petitioners,
made it clear that a public prosecutor’s duty is two-fold. vs.
On one hand, he is bound by his oath of office to MAGDALENO M. PEÑA and HON. MANUEL Q.
prosecute persons where the complainant’s evidence is LIMSIACO, JR., as Judge Designate of the Municipal
ample and sufficient to show prima facie guilt of a crime. Trial Court in Cities, Bago City, Respondents.
Yet, on the other hand, he is likewise duty-bound to
protect innocent persons from groundless, false, or DECISION
malicious prosecution.22
PEREZ, J.:
Hence, we hold that the Court of Appeals was correct in
dismissing the petition for review against private The pivotal issue in this case is whether or not the Court of
respondents and in concluding that the DOJ did not act Appeals, in its Decision1 dated 20 June 2000 in CA-G.R. SP
with grave abuse of discretion tantamount to lack or No. 49666, is correct when it dismissed the petition for
excess of jurisdiction. certiorari filed by petitioners Teodoro C. Borlongan, Jr.,
Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de
On petitioner’s complaint for violation of the Securities Leon, P. Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee
Regulation Code, suffice it to state that, as aptly declared and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court
by the Court of Appeals, he should have filed it with the in Cities (MTCC), Bago City, did not gravely abuse its
SEC, not the DOJ. Again, there is no indication here that in discretion in denying the motion for reinvestigation and
dismissing petitioner’s complaint, the DOJ acted recall of the warrants of arrest in Criminal Case Nos. 6683,
capriciously or arbitrarily. 6684, 6685, and 6686.

WHEREFORE, we DENY the petitions and AFFIRM the The factual antecedents of the case are as follows:
assailed Decisions of the Court of Appeals in CA-G.R. SP
No. 87328 and in CA-G.R. SP No. 85078. Respondent Atty. Magdaleno M. Peña (Atty. Peña)
instituted a civil case for recovery of agent’s
Costs against petitioner. compensation and expenses, damages, and attorney’s
fees2 against Urban Bank and herein petitioners, before
SO ORDERED. the Regional Trial Court (RTC) of Negros Occidental, Bago
City. The case was raffled to Branch 62 and was docketed
as Civil Case No. 754. Atty. Peña anchored his claim for
compensation on the Contract of Agency3 allegedly
entered into with the petitioners, wherein the former
undertook to perform such acts necessary to prevent any
intruder and squatter from unlawfully occupying Urban
Bank’s property located along Roxas Boulevard, Pasay
City. Petitioners filed a Motion to Dismiss4 arguing that they
never appointed the respondent as agent or counsel.
Attached to the motion were the following documents: 1)
a Letter5 dated 19 December 1994 signed by Herman
Ponce and Julie Abad on behalf of Isabela Sugar
Company, Inc. (ISCI), the original owner of the subject
property; 2) an unsigned Letter6 dated 7 December 1994
addressed to Corazon Bejasa from Marilyn G. Ong; 3) a
Letter7 dated 9 December 1994 addressed to Teodoro
Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a
Memorandum8 dated 20 November 1994 from Enrique
Montilla III. Said documents were presented in an attempt
to show that the respondent was appointed as agent by
ISCI and not by Urban Bank or by the petitioners.

In view of the introduction of the above-mentioned


documents, Atty. Peña filed his Complaint-Affidavit9 with
the Office of the City Prosecutor, Bago City.10 He claimed
that said documents were falsified because the alleged
signatories did not actually affix their signatures, and the

68
signatories were neither stockholders nor officers and Petitioners immediately instituted a special civil action for
employees of ISCI.11 Worse, petitioners introduced said Certiorari and Prohibition with Prayer for Writ of Preliminary
documents as evidence before the RTC knowing that they Injunction and Temporary Restraining Order (TRO) before
were falsified. the Court of Appeals, ascribing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
In a Resolution12 dated 24 September 1998, the City the MTCC in issuing and not recalling the warrants of arrest,
Prosecutor found probable cause for the indictment of reiterating the arguments in their omnibus motion.18 They,
petitioners for four (4) counts of the crime of Introducing likewise, questioned the court’s conclusion that by posting
Falsified Documents, penalized by the second paragraph bail, petitioners already waived their right to assail the
of Article 172 of the Revised Penal Code. The City validity of the warrants of arrest.
Prosecutor concluded that the documents were falsified
because the alleged signatories untruthfully stated that On 20 June 2000, the Court of Appeals dismissed the
ISCI was the principal of the respondent; that petitioners petition.19 Thus, petitioners filed the instant petition for
knew that the documents were falsified considering that review on certiorari under Rule 45 of the Rules of Court,
the signatories were mere dummies; and that the raising the following issues:
documents formed part of the record of Civil Case No. 754
where they were used by petitioners as evidence in A.
support of their motion to dismiss, and then adopted in
their answer and in their Pre-Trial Brief.13 Subsequently, the Where the offense charged in a criminal complaint is not
corresponding Informations14 were filed with the MTCC, cognizable by the Regional Trial Court and not covered by
Bago City. The cases were docketed as Criminal Case Nos. the Rule on Summary Procedure, is the finding of probable
6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo cause required for the filing of an Information in court?
Blanca issued the warrants15 for the arrest of the
petitioners. If the allegations in the complaint-affidavit do not establish
probable cause, should not the investigating prosecutor
On 1 October 1998, petitioners filed an Omnibus Motion to dismiss the complaint, or at the very least, require the
Quash, Recall Warrants of Arrest and/or For respondent to submit his counter-affidavit?
Reinvestigation.16 Petitioners insisted that they were
denied due process because of the non-observance of B.
the proper procedure on preliminary investigation
prescribed in the Rules of Court. Specifically, they claimed Can a complaint-affidavit containing matters which are
that they were not afforded the right to submit their not within the personal knowledge of the complainant be
counter-affidavit. Then they argued that since no such sufficient basis for the finding of probable cause?
counter-affidavit and supporting documents were
submitted by the petitioners, the trial judge merely relied C.
on the complaint-affidavit and attachments of the
respondent in issuing the warrants of arrest, also in Where there is offense charged in a criminal complaint is
contravention with the Rules of Court. Petitioners further not cognizable by the Regional Trial Court and not
prayed that the information be quashed for lack of covered by the Rule on Summary Procedure, and the
probable cause. Moreover, one of the accused, i.e., Ben record of the preliminary investigation does not show the
Lim, Jr., is not even a director of Urban Bank, contrary to existence of probable cause, should not the judge refuse
what complainant stated. Lastly, petitioners posited that to issue a warrant of arrest and dismiss the criminal case,
the criminal cases should have been suspended on the or at the very least, require the accused to submit his
ground that the issue being threshed out in the civil case is counter-affidavit in order to aid the judge in determining
a prejudicial question. the existence of probable cause?

In an Order17 dated 13 November 1998, the MTCC denied D.


the omnibus motion primarily on the ground that
preliminary investigation was not available in the instant Can a criminal prosecution be restrained?
case – which fell within the jurisdiction of the first-level
court. The court, likewise, upheld the validity of the warrant E.
of arrest, saying that it was issued in accordance with the
Rules of Court. Besides, the court added, petitioners could Can this Honorable Court itself determine the existence of
no longer question the validity of the warrant since they probable cause?20
already posted bail. The court also believed that the issue
involved in the civil case was not a prejudicial question, On the other hand, respondent contends that the issues
and, thus, denied the prayer for suspension of the criminal raised by the petitioners had already become moot and
proceedings. Lastly, the court was convinced that the academic when the latter posted bail and were already
Informations contained all the facts necessary to arraigned.
constitute an offense.
On 2 August 2000, this Court issued a TRO21 enjoining the
judge of the MTCC from proceeding in any manner with

69
Criminal Case Nos. 6683 to 6686, effective during the entire and unequivocally relinquish the particular right that no
period that the case is pending before, or until further other explanation of his conduct is possible. x x x.
orders of, this Court.
Herein petitioners filed the Omnibus Motion to Quash,
We will first discuss the issue of mootness. Recall Warrants of Arrest and/or For Reinvestigation on the
same day that they posted bail. Their bail bonds likewise
The issues raised by the petitioners have not been mooted expressly contained a stipulation that they were not
by the fact that they had posted bail and were already waiving their right to question the validity of their arrest.24
arraigned. On the date of their arraignment, petitioners refused to
enter their plea due to the fact that the issue on the
It appears from the records that upon the issuance of the legality of their arrest is still pending with the Court. Thus,
warrant of arrest, petitioners immediately posted bail as when the court a quo entered a plea of not guilty for them,
they wanted to avoid embarrassment, being then the there was no valid waiver of their right to preclude them
officers of Urban Bank. On the scheduled date for the from raising the same with the Court of Appeals or this
arraignment, despite the petitioners’ refusal to enter a Court. The posting of bail bond was a matter of imperative
plea, the court a quo entered a plea of "Not Guilty" for necessity to avert their incarceration; it should not be
them. deemed as a waiver of their right to assail their arrest. The
ruling to which we have returned in People v. Red25
The erstwhile ruling of this Court was that posting of bail stated:
constitutes a waiver of any irregularity in the issuance of a
warrant of arrest, that has already been superseded by x x x The present defendants were arrested towards the
Section 26, Rule 114 of the Revised Rule of Criminal end of January, 1929, on the Island and Province of
Procedure. The principle that the accused is precluded Marinduque by order of the judge of the Court of First
from questioning the legality of the arrest after Instance of Lucena, Tayabas, at a time when there were
arraignment is true only if he voluntarily enters his plea and no court sessions being held in Marinduque. In view of
participates during trial, without previously invoking his these circumstances and the number of the accused, it
objections thereto.22 may properly be held that the furnishing of the bond was
prompted by the sheer necessity of not remaining in
As held in Okabe v. Hon. Gutierrez:23 detention, and in no way implied their waiver of any right,
such as the summary examination of the case before their
It bears stressing that Section 26, Rule 114 of the Revised detention. That they had no intention of waiving this right
Rules on Criminal Procedure is a new one, intended to is clear from their motion of January 23, 1929, the same day
modify previous rulings of this Court that an application for on which they furnished a bond, and the fact that they
bail or the admission to bail by the accused shall be renewed this petition on February 23, 1929, praying for the
considered as a waiver of his right to assail the warrant stay of their arrest for lack of the summary examination; the
issued for his arrest on the legalities or irregularities thereon. first motion being denied by the court on January 24, 1929
The new rule has reverted to the ruling of this Court in (G.R. No. 33708, page 8), and the second remaining
People v. Red. The new rule is curative in nature because undecided, but with an order to have it presented in Boac,
precisely, it was designed to supply defects and curb evils Marinduque.
in procedural rules. Hence, the rules governing curative
statutes are applicable. Curative statutes are by their Therefore, the defendants herein cannot be said to have
essence retroactive in application. Besides, procedural waived the right granted to them by section 13, General
rules as a general rule operate retroactively, even without Order No. 58, as amended by Act No. 3042.
express provisions to that effect, to cases pending at the
time of their effectivity, in other words to actions yet The rest of the issues raised by the petitioners may be
undetermined at the time of their effectivity. Before the grouped into two, which are: (1) the procedural aspect,
appellate court rendered its decision on January 31, 2001, i.e., whether the prosecution and the court a quo properly
the Revised Rules on Criminal Procedure was already in observed the required procedure in the instant case, and,
effect. It behoved the appellate court to have applied the (2) the substantive aspect, which is whether there was
same in resolving the petitioner’s petition for certiorari and probable cause to pursue the criminal cases to trial.
her motion for partial reconsideration.1avvphi1
The procedural aspect:
Moreover, considering the conduct of the petitioner after
posting her personal bail bond, it cannot be argued that Petitioners contend that they were denied due process as
she waived her right to question the finding of probable they were unable to submit their counter-affidavits and
cause and to assail the warrant of arrest issued against her were not accorded the right to a preliminary investigation.
by the respondent judge. There must be clear and Considering that the complaint of Atty. Peña was filed in
convincing proof that the petitioner had an actual September 1998, the rule then applicable was the 1985
intention to relinquish her right to question the existence of Rules of Criminal Procedure.
probable cause. When the only proof of intention rests on
what a party does, his act should be so manifestly
consistent with, and indicative of, an intent to voluntarily

70
The provisions of the 1985 Rules of Criminal Procedure of the false documents embraced in the next preceding
relevant to the issue are Sections 1, 3(a) and 9(a) of Rule article or in any of the foregoing subdivisions of this article,
112, to wit: shall be punished by the penalty next lower in degree.

Section 1. Definition. Preliminary investigation is an inquiry Prision correccional in its medium and maximum periods
or proceeding for the purpose of determining whether translates to imprisonment of 2 years, 4 months and 1
there is sufficient ground to engender a well founded day.26 The next lower in degree to prision correccional is
belief that a crime cognizable by the Regional Trial Court arresto mayor in its maximum period to prision
has been committed and that the respondent is probably correccional in its minimum period which translates to 4
guilty thereof, and should be held for trial. months and 1 day to 2 years and 4 months27 of
imprisonment. Since the crime committed is not covered
Sec. 3. Procedure. Except as provided for in Section 7 by the Rules of Summary Procedure,28 the case falls within
hereof, no complaint or information for an offense the exclusive jurisdiction of the first level courts but
cognizable by the Regional Trial Court shall be filed without applying the ordinary rules. In such instance, preliminary
a preliminary investigation having been first conducted in investigation as defined in Section 1, Rule 112 of the 1985
the following manner: Rules of Criminal Procedure is not applicable since such
section covers only crimes cognizable by the RTC. That
(a) The complaint shall state the known address of the which is stated in Section 9(a) is the applicable rule.
respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting Under this Rule, while probable cause should first be
documents, in such number of copies as there are determined before an information may be filed in court,
respondents, plus two (2) copies for the official file. The said the prosecutor is not mandated to require the respondent
affidavits shall be sworn to before any fiscal, state to submit his counter-affidavits to oppose the complaint.
prosecutor or government official authorized to administer In the determination of probable cause, the prosecutor
oath, or, in their absence or unavailability, a notary public, may solely rely on the complaint, affidavits and other
who must certify that he personally examined the affiants supporting documents submitted by the complainant. If
and that he is satisfied that they voluntarily executed and he does not find probable cause, the prosecutor may
understood their affidavits. dismiss outright the complaint or if he finds probable cause
or sufficient reason to proceed with the case, he shall issue
Sec. 9. Cases not falling under the original jurisdiction of the a resolution and file the corresponding information.
Regional Trial Courts nor covered by the Rule on Summary
Procedure. The complaint of respondent, verbatim, is as follows:

(a) Where filed with the fiscal.— If the complaint is filed COMPLAINT – AFFIDAVIT
directly with the fiscal or state prosecutor, the procedure
outlined in Section 3(a) of this Rule shall be observed. The I, MAGDALENO M. PEÑA, Filipino, of legal age, with
fiscal shall take appropriate action based on the affidavits address at Brgy. Ubay, Pulupandan, Negros Occidental,
and other supporting documents submitted by the after having been sworn in accordance with law hereby
complainant. (underscoring supplied) depose and state:

The crime to which petitioners were charged was defined 1. I am the Plaintiff in Civil Case No. 754 pending with the
and penalized under second paragraph of Article 172 in Regional Trial Court of Bago City entitled "Atty. Magdaleno
relation to Article 171 of the Revised Penal Code. M. Peña v. Urban Bank, et al" Impleaded therein as
defendants of the board of the bank, namely, Teodoro
Art. 172. Falsification by private individual and use of Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo
falsified documents. — The penalty of prision correccional Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo
in its medium and maximum periods and a fine of not more Manuel.(underlining ours)
than ₱5,000 pesos shall be imposed upon:
2. I filed the said case to collect my fees as agent of Urban
1. Any private individual who shall commit any of the Bank, Inc.(hereinafter referred to as the "bank") in ridding
falsifications enumerated in the next preceding article in a certain parcel of land in Pasay City of squatters and
any public or official document or letter of exchange or intruders. A certified true copy of the Complaint in the said
any other kind of commercial document; and case is hereto attached as Annex "A".

2. Any person who, to the damage of a third party, or with 3. In the Motion to Dismiss dated 12 March 1996 (a certified
the intent to cause such damage, shall in any private true copy of which is attached as Annex "B"), Answer
document commit any of the acts of falsification dated 28 October 1996 (Annex "C"), and Pre-Trial Brief
enumerated in the next preceding article. dated 28 January 1997 (Annex "D") filed by the bank and
the respondent members of the board, the said
Any person who shall knowingly introduce in evidence in respondents used as evidence the following documents:
any judicial proceeding or to the damage of another or
who, with the intent to cause such damage, shall use any

71
a. Letter dated 19 December 1994 supposedly signed by Atty. Magdaleno M. Peña, who has been assigned by
a certain Herman Ponce and Julie Abad for Isabela Sugar Isabela Sugar Company inc. to take charge of inspecting
Company (ISC) (a copy of which is attached as Annex "E"), the tenants would like to request an authority similar to this
which states: from the Bank to new owners. Can you please issue
something like this today as he (unreadable) this.
December 19, 1994
Urban Bank b. Letter dated 9 December 1994 supposedly executed by
Urban Avenue, Makati the same Marilyn Ong, a copy of which is hereto attached
Metro Manila as Annex "G", which states:

Gentlemen: December 9, 1994

This has reference to your property located among Roxas Atty. Ted Borlongan
Boulevard, Pasay City which you purchased from Isabela URBAN BANK OF THE PHILIPPINES
Sugar Company under a Deed of Absolute Sale executed MAKATI, METRO MANILA
on December 1, 1994.
Attention: Mr. Ted Borlongan
In line with our warranties as the Seller of the said property
and our undertaking to deliver to you the full and actual Dear Mr. Borlongan
possession and control of said property, free from tenants,
occupants or squatters and from any obstruction or I would like to request for an authority from Urban Bank per
impediment to the free use and occupancy of the attached immediately – as the tenants are questioning
property and to prevent the former tenants or occupants authority of the people who are helping us to take
from entering or returning to the premises. In view of the possession of the property.
transfer of ownership of the property to Urban Bank, it may
be necessary for Urban Bank to appoint Atty. Peña likewise Marilyn Ong
as its authorized representative for purposes of
holding/maintaining continued possession of the said c. Memorandum dated 20 November 1994, copy of which
property and to represent Urban Bank in any court action is attached as annex "H", which states:
that may be instituted for the abovementioned purposes.
MEMORANDUM
It is understood that any attorney’s fees, cost of litigation
and any other charges or expenses that may be incurred To: Atty. Magadaleno M. Peña
relative to the exercise by Atty. Peña of his Director
abovementioned duties shall be for the account of
Isabela Sugar Company and any loss or damage that may From: Enrique C. Montilla III
be incurred to third parties shall be answerable by Isabela President
Sugar Company.
Date: 20 November 1994
Very truly yours,
You are hereby directed to recover and take possession of
Isabela Sugar Company the property of the corporation situated at Roxas
Boulevard covered by TCT No. 5382 of the Registry of
By: Deeds for Pasay City, immediately upon the expiration of
the contract of lease over the said property on 29
HERMAN PONCE November 1994. For this purpose, you are authorized to
JULIE ABAD engage the services of security guards to protect the
property against intruders. You may also engage the
b. Memorandum dated 7 December 1994 supposedly services of a lawyer in case there is a need to go to court
executed by a certain Marilyn Ong on behalf of ISC, a to protect the said property of the corporation. In addition,
copy of which is hereto attached as annex "F", which you may take whatever steps or measures are necessary
states: to ensure our continued possession of the property.

December 7, 1994 ENRIQUE C. MONTILLA III


President
To: ATTY. CORA BEJASA
4. The respondent member of the board of the bank used
From: MARILYN G. ONG and introduced the aforestated documents as evidence
in the civil case knowing that the same are falsified. They
RE: ISABELA SUGAR CO., INC. used thae said documents to justify their refusal to pay my
agent’s fees, to my damage and prejudice.

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5. The 19 December 1994 letter (Annex ‘E") is a falsified from the body of the complaint and the specific
document, in that the person who supposedly executed averments therein, Mr. Ben Lim, Jr. was never mentioned.
the letter on behalf of ISC, a certain Herman Ponce and
Julie Abad did not actually affix their signatures on the The City Prosecutor should have cautiously reviewed the
document. The execution of the letter was merely complaint to determine whether there were
simulated by making it appear that Ponce and Abad inconsistencies which ought to have been brought to the
executed the letter on behalf of ISC when they did not in attention of the respondent or, on his own, considered for
fact do so. due evaluation. It is a big mistake to bring a man to trial for
a crime he did not commit.
6. No persons by the name of Herman Ponce and Julie
Abad were ever stockholders, officers, employees or Prosecutors are endowed with ample powers in order that
representatives of ISC. In the letter, Herman Ponce was they may properly fulfill their assigned role in the
represented to be the President of ISC and Julie Abad, the administration of justice. It should be realized, however,
Corporate Secretary. However, as of 19 December 1994, that when a man is hailed to court on a criminal charge, it
the real President of plaintiff was Enrique Montilla, III and brings in its wake problems not only for the accused but for
Cristina Montilla was the Corporate Secretary. A copy of his family as well. Therefore, it behooves a prosecutor to
the Minutes of the Regular Meeting of ISC for the year 1994, weigh the evidence carefully and to deliberate thereon to
during which Montilla, et al. Were elected is hereto determine the existence of a prima facie case before filing
attached as Annex "I". On the otherhand, a list of the the information in court. Anything less would be a
stockholders of ISC on or about the time of the transaction dereliction of duty.29
is attached as Annex "J".
Atty. Peña, in his Second Manifestation30 dated 16 June
7. The same holds true with respect to the Memorandum 1999, averred that petitioners, including Mr. Ben Lim, Jr.,
dated 7 December 1994 and athe letter dated 9 were already estopped from raising the fact that Mr. Ben
December 1994 allegedly written by a ceratin Marilyn Lim, Jr. was not a member of the board of directors of
Ong. Nobody by the said name was ever a stockholder of Urban Bank, as the latter participated and appeared
ISC. through counsel in Civil Case No. 754 without raising any
opposition. However, this does not detract from the fact
8. Lastly, with respect to the supposed Memorandum that the City Prosecutor, as previously discussed, did not
issued by Enrique Montilla, III his signature thereon was carefully scrutinize the complaint of Atty. Peña, which did
merely forged by respondents. Enrique Montilla III, did not not charge Mr. Ben Lim, Jr. of any crime.
affix his signature on any such document.
What tainted the procedure further was that the Judge
9. I am executing this affidavit for the purpose of charging issued a warrant for the arrest of the petitioners, including,
Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E. Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to
Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Quash, Recall Warrants of Arrest and/or For Reinvestigation
Siervo H. Dizon and Eric Lee, with the crime of use of raising among others the issue that Mr. Ben Lim, Jr., was not
falsified documents under Artilce 172, paragraph 2, of the even a member of the board of directors. With the filing of
Revised Penal Code.(underlining ours) the motion, the judge is put on alert that an innocent
person may have been included in the complaint. In the
10. I am likewise executing this affidavit for whatever legal Order31 dated 13 November 1998, in denying the motion
purpose it may serve. to quash, Judge Primitivo Blanca ruled that:

FURTHER AFFIANT SAYETH NAUGHT. Courts in resolving a motion to quash cannot consider
facts contrary to those alleged in the information or which
Sgd. MAGDALENO M. PEÑA do not appear on the face of the information because
said motion is hypothethical admission of the facts alleged
It is evident that in the affidavit-complaint, specifically in in the information x x x. (citations omitted.)
paragraph 1, respondent merely introduced and
identified "the board of the bank, namely, Teodoro We cannot accept as mere oversight the mistake of
Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. respondent judge since it was at the expense of liberty. This
Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and cannot be condoned.
Arturo Manuel, Sr." However, in the accusatory portion of
the complaint which is paragraph number 9, Mr. Ben Lim, In the issuance of a warrant of arrest, the mandate of the
Jr. was not included among those charged with the crime Constitution is for the judge to personally determine the
of use of falsified documents under Article 172, paragraph existence of probable cause:
2, of the Revised Penal Code. The omission indicates that
respondent did not intend to criminally implicate Mr. Ben Section 2, Article III of the Constitution provides:
Lim, Jr., even as he was acknowledged to be a member
of the board. And there was no explanation in the Section 2. The right of the people to be secure in their
Resolution and Information by the City Prosecutor why Mr. persons, houses, papers and effects against unreasonable
Ben Lim, Jr. was included. Moreover, as can be gleaned searches and seizures of whatever nature and for any

73
purpose shall be inviolable, and no search warrant or not on the strength of the certification standing alone but
warrant of arrest shall issue except upon probable cause because of the records which sustain it.34 He should even
to be determined personally by the judge after call for the complainant and the witnesses to answer the
examination under oath or affirmation of the complainant court's probing questions when the circumstances
and the witnesses he may produce, and particularly warrant.35
describing the place to be searched and the persons or
things to be seized. An arrest without a probable cause is an unreasonable
seizure of a person, and violates the privacy of persons
Corollary thereto, Section 9(b) of the 1985 Rules of Criminal which ought not to be intruded by the State.36
Procedure provides:
Measured against the constitutional mandate and
Sec. 9. Cases not falling under the original jurisdiction of the established rulings, there was here a clear abdication of
Regional Trial Courts nor covered by the Rule on Summary the judicial function and a clear indication that the judge
Procedure. blindly followed the certification of a city prosecutor as to
the existence of probable cause for the issuance of a
(a) x x x. warrant of arrest with respect to all of the petitioners. The
careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest
(b) Where filed directly with the Municipal Trial Court. — If gives flesh to the bone of contention of petitioners that the
the complaint or information is filed directly with the instant case is a matter of persecution rather than
Municipal Trial Court, the procedure provided for in prosecution.37 On this ground, this Court may enjoin the
Section 3(a) of this Rule shall likewise be observed. If the criminal cases against petitioners. As a general rule,
judge finds no sufficient ground to hold the respondent for criminal prosecutions cannot be enjoined. However, there
trial, he shall dismiss the complaint or information. are recognized exceptions which, as summarized in
Otherwise, he shall issue a warrant of arrest after personally Brocka v. Enrile,38 are:
examining in writing and under oath the complainant and
his witnesses in the form of searching questions and a. To afford adequate protection to the constitutional
answers. rights of the accused;39

Enshrined in our Constitution is the rule that "[n]o x x x b. When necessary for the orderly administration of justice
warrant of arrest shall issue except upon probable cause or to avoid oppression or multiplicity of actions;40
to be determined personally by the judge after
examination under oath or affirmation of the complainant c. When there is a prejudicial question which is sub
and the witnesses he may produce, and particularly judice;41
describing x x x the persons x x x to be seized."32
Interpreting the words "personal determination," we said in d. When the acts of the officer are without or in excess of
Soliven v. Makasiar33 that it does not thereby mean that authority;42
judges are obliged to conduct the personal examination
of the complainant and his witnesses themselves. To e. Where the prosecution is under an invalid law,
require thus would be to unduly laden them with ordinance or regulation;43
preliminary examinations and investigations of criminal
complaints instead of concentrating on hearing and f. When double jeopardy is clearly apparent;44
deciding cases filed before them. Rather, what is
emphasized merely is the exclusive and personal g. Where the court had no jurisdiction over the offense;45
responsibility of the issuing judge to satisfy himself as to the
existence of probable cause. To this end, he may: (a) h. Where it is a case of persecution rather than
personally evaluate the report and the supporting prosecution;46
documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof, i. Where the charges are manifestly false and motivated
issue a warrant of arrest; or (b) if on the basis thereof he by the lust for vengeance;47 and
finds no probable cause, disregard the prosecutor's report
and require the submission of supporting affidavits of j. When there is clearly no prima facie case against the
witnesses to aid him in determining its existence. What he accused and a motion to quash on that ground has been
is never allowed to do is to follow blindly the prosecutor's denied.48
bare certification as to the existence of probable cause.
Much more is required by the constitutional provision. The substantive aspect:
Judges have to go over the report, the affidavits, the
transcript of stenographic notes if any, and other Petitioners were charged with violation of par. 2, Article
documents supporting the prosecutor's certification. 172 of the Revised Penal Code or Introduction of Falsified
Although the extent of the judge's personal examination Document in a judicial proceeding. The elements of the
depends on the circumstances of each case, to be sure, offense are as follows:
he cannot just rely on the bare certification alone but must
go beyond it. This is because the warrant of arrest issues

74
1. That the offender knew that a document was falsified another memorandum addressed to respondent was
by another person. forged.55 These averments are mere assertions which are
insufficient to warrant the filing of the complaint or worse
2. That the false document is embraced in Article 171 or in the issuance of warrants of arrest. These averments cannot
any subdivisions Nos. 1 or 2 of Article 172. be considered as proceeding from the personal
knowledge of herein respondent who failed to, basically,
3. That he introduced said document in evidence in any allege that he was present at the time of the execution of
judicial proceeding.49 the documents. Neither was there any mention in the
complaint-affidavit that herein respondent was familiar
The falsity of the document and the defendants’ with the signatures of the mentioned signatories to be able
knowledge of its falsity are essential elements of the to conclude that they were forged. What Atty. Peña
offense. The Office of the City Prosecutor filed the actually stated were but sweeping assertions that the
Informations against the petitioners on the basis of the signatories are mere dummies of ISCI and that they are not
Complaint-Affidavit of respondent Atty. Peña, attached to in fact officers, stockholders or representatives of the
which were the documents contained in the Motion to corporation. Again, there is no indication that the assertion
Dismiss filed by the petitioners in Civil Case No. 754. Also was based on the personal knowledge of the affiant.
included as attachments to the complaint were the
Answers, Pre-Trial Brief, the alleged falsified documents, The reason for the requirement that affidavits must be
copy of the regular meetings of ISCI during the election of based on personal knowledge is to guard against hearsay
the Board of Directors and the list of ISCI Stockholders.50 evidence. A witness, therefore, may not testify as what he
Based on these documents and the complaint-affidavit of merely learned from others either because he was told or
Atty. Peña, the City Prosecutor concluded that probable read or heard the same. Such testimony is considered
cause for the prosecution of the charges existed. On the hearsay and may not be received as proof of the truth of
strength of the same documents, the trial court issued the what he has learned.56 Hearsay is not limited to oral
warrants of arrest. testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral
This Court, however, cannot find these documents statements.57
sufficient to support the existence of probable cause.
The requirement of personal knowledge should have been
Probable cause is such set of facts and circumstances as strictly applied considering that herein petitioners were not
would lead a reasonably discreet and prudent man to given the opportunity to rebut the complainant’s
believe that the offense charged in the Information or any allegation through counter-affidavits.
offense included therein has been committed by the
person sought to be arrested. In determining probable Quite noticeable is the fact that in the letter dated 19
cause, the average man weighs the facts and December 1994 of Herman Ponce and Julie Abad, neither
circumstances without restoring to the calibrations of the of the two made the representation that they were the
rules of evidence of which he has no technical president or secretary of ISCI. It was only Atty. Peña who
knowledge. He relies on common sense. A finding of asserted that the two made such representation. He
probable cause needs only to rest on evidence showing alleged that Marilyn Ong was never a stockholder of ISCI
that, more likely than not, a crime has been committed but he did not present the stock and transfer book of ISCI.
and that it was committed by the accused. Probable And, there was neither allegation nor proof that Marilyn
cause demands more than suspicion; it requires less than Ong was not connected to ISCI in any other way.lawphil
evidence that would justify conviction.51 Moreover, even if Marilyn Ong was not a stockholder of
ISCI, such would not prove that the documents she signed
As enunciated in Baltazar v. People,52 the task of the were falsified.
presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non- The Court may not be compelled to pass upon the
existence of probable cause for the arrest of the accused. correctness of the exercise of the public prosecutor’s
function without any showing of grave abuse of discretion
The purpose of the mandate of the judge to first determine or manifest error in his findings.58 Considering, however,
probable cause for the arrest of the accused is to insulate that the prosecution and the court a quo committed
from the very start those falsely charged with crimes from manifest errors in their findings of probable cause, this
the tribulations, expenses and anxiety of a public trial.53 Court therefore annuls their findings.

We do not see how it can be concluded that the Our pronouncement in Jimenez v. Jimenez59 as reiterated
documents mentioned by respondent in his complaint- in Baltazar v. People is apropos:
affidavit were falsified. In his complaint, Atty. Peña stated
that Herman Ponce, Julie Abad and Marilyn Ong, the It is x x x imperative upon the fiscal or the judge as the case
alleged signatories of the questioned letters, did not may be, to relieve the accused from the pain of going
actually affix their signatures therein; and that they were through a trial once it is ascertained that the evidence is
not actually officers or stockholders of ISCI.54 He further insufficient to sustain a prima facie case or that no
claimed that Enrique Montilla’s signature appearing in probable cause exists to form a sufficient belief as to the

75
guilt of the accused. Although there is no general formula
or fixed rule for the determination of probable cause since
the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to
a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the
clear dictates of reasons. The judge or fiscal, therefore,
should not go on with the prosecution in the hope that
some credible evidence might later turn up during trial for
this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the
judiciary lives up to its mission by visualizing and not
denigrating constitutional rights. So it has been before. It
should continue to be so.

On the foregoing discussion, we find that the Court of


Appeals erred in affirming the findings of the prosecutor as
well as the court a quo as to the existence of probable
cause. The criminal complaint against the petitioners
should be dismissed.

WHEREFORE, the petition is hereby GRANTED. The Decision


of the Court of Appeals dated 20 June 2000, in CA-G.R. SP
No. 49666, is REVERSED and SET ASIDE. The Temporary
Restraining Order dated 2 August 2000 is hereby made
permanent. Accordingly, the Municipal Trial Court in Cities,
Negros Occidental, Bago City, is hereby DIRECTED to
DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.

SO ORDERED.

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