July 31, 2017

G.R. No. 227038

JEFFREY MIGUEL y REMEGIO, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari are the Decision dated October 21, 2015 and the
1 2

Resolution dated September 5, 2016 of the Court of Appeals (CA) in CA-G.R. CR No. 35318, which
3

affirmed the Decision dated October 1, 2012 of the Regional Trial Court of Makati City, Branch 64
4

(RTC) in Criminal Case No. 10-912 convicting petitioner Jeffrey Miguel y Remegio (petitioner) of the
crime of illegal possession of dangerous drugs.

The Facts

On May 27, 2010, an Information was filed before the RTC charging petitioner of illegal possession
5

of dangerous drugs, defined and penalized under Section 11, Article II of Republic Act No. (RA)
9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," the accusatory
6

portion of which reads:

On the 24111 day of May 2010, in the city of Makati, the Philippines, accused, not being lawfully
authorized to possess any dangerous drug and without the corresponding license or prescription, did
then and there willfully, unlawfully and feloniously have in his possession, control, and custody a total
of one point ten (1.10) grams of dried Marijuana leaves, a dangerous drug.

CONTRARY TO LAW. 7

The prosecution alleged that at around 12:45 in the morning of May 24, 2010, a Bantay
Bayan operative of Barangay San Antonio Village, Makati City named Reynaldo Bahoyo (BB
Bahoyo) was doing his rounds when he purportedly received a report of a man showing off his
private parts at Kaong Street. BB Bahoyo and fellow Bantay Bayan operative Mark Anthony
Velasquez (BB Velasquez) then went to the said street and saw a visibly intoxicated person, which
they later identified as herein petitioner, urinating and displaying his private parts while standing in
front of a gate enclosing an empty lot. BB Bahoyo and BB Velasquez approached petitioner and
asked him where he lived, and the latter answered Kaong Street. BB Bahoyo then said that he also
lived in the same street but petitioner looked unfamiliar to him, so he asked for an identification card,
but petitioner failed to produce one. BB Velasquez then repeated the request for an identification
card, but instead, petitioner emptied his pockets, revealing a pack of cigarettes containing one (1)
stick of cigarette and two (2) pieces of rolled paper containing dried marijuana leaves, among others.
This prompted BB Bahoyo and BB Velasquez to seize the foregoing items, take petitioner to the
police station, and turn him, as well as the seized items, over to SP03 Rafael Castillo (SPO3
Castillo). SP03 Castillo then inventoried, marked, and photographed the seized items, all in the
presence of BB Bahoyo and BB Velasquez, and thereafter, prepared an inventory report and a
request for qualitative examination of the seized two (2) pieces of rolled paper and for petitioner to
undergo drug testing. After examination, it was confirmed that the aforesaid rolled paper contained
marijuana and that petitioner was positive for the presence of methamphetamine but negative for
THC-metabolites, both dangerous drugs. 8

Petitioner pleaded not guilty to the charge, and thereafter, presented a different version of the facts.
According to him, he was just urinating in front of his workplace when two (2) Bantay
Bayan operatives, i.e., BB Bahoyo and BB Velasquez, approached and asked him where he lived.
Upon responding that he lived in Kaong Street, BB Bahoyo and BB Velasquez then frisked him, took
away his belongings, and thereafter, handcuffed and brought him to the barangay hall. He was then
detained for about an hour before being taken to the Ospital ng Makati and to another office where a
bald police officer questioned him. Thereafter, he was taken back to the barangay hall where they
showed him two (2) sticks of marijuana joints allegedly recovered from him. 9

The RTC Ruling

In a Decision dated October 1, 2012, the RTC found petitioner guilty beyond reasonable doubt of
10

the crime charged and, accordingly, sentenced him to suffer the penalty of imprisonment for an
indeterminate period of twelve (12) years and one (1) day, as minimum, to fourteen (14) years and
eight (8) months, as maximum, and to pay a fine in the amount of ₱300,000.00, without subsidiary
imprisonment in case of insolvency. 11

The RTC found that BB Bahoyo and BB Velasquez conducted a valid warrantless arrest, as
petitioner was scandalously showing his private parts at the time of his arrest. Therefore, the
resultant search incidental to such arrest which yielded the seized marijuana in petitioner's
possession was also lawful. In this regard, since the prosecution has adequately shown that
petitioner freely and consciously possessed such marijuana without authority by law, then he must
be convicted for violating Section 11, Article II of RA 9165.12

Aggrieved, petitioner appealed to the CA.

13

The CA Ruling

In a Decision dated October 21, 2015, the CA affirmed petitioner's conviction. It held that the
14 15

search made on petitioner which yielded the seized marijuana was validly made as it was done
incidental to his arrest for exhibiting his private parts on public. As such, the said seized marijuana is
admissible in evidence and, thus, sufficient to convict him for the crime charged. The CA likewise
16

held that the rule on chain of custody was duly complied with and, thus, the integrity and evidentiary
value of the seized drugs were not compromise d. 17

Undaunted, petitioner moved for reconsideration, which was, however, denied in a

18

Resolution dated September 5, 2016; hence, this petition.

19

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA correctly upheld petitioner's conviction
for illegal possession of dangerous drugs.

The Court's Ruling

The petition is meritorious.

In criminal cases, "an appeal throws the entire case wide open for review and the reviewing tribunal
can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's
decision based on grounds other than those that the parties raised as errors. The appeal confers the
appellate court full jurisdiction over the case and renders such court competent to examine records,
revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal
law."
20

Proceeding from the foregoing, and as will be explained hereunder, petitioner's conviction must be
set aside.

One of the arguments presented in the instant petition is that the search and arrest made on
petitioner were illegal and, thus, the marijuana purportedly seized from him is inadmissible in
evidence. In this relation, it is worth noting that his arresting officers, i.e., BB Bahoyo and BB
21

Velasquez, are mere Bantay Bayan operatives of Makati City. Strictly speaking, they are not
government agents like the Philippine National Police (PNP) or the National Bureau of Investigation
in charge of law enforcement; but rather, they are civilian volunteers who act as "force multipliers"
to assist the aforesaid law enforcement agencies in maintaining peace and security within their
designated areas. Particularly, jurisprudence described the nature of Bantay Bayan as "a group of
22

male residents living in [the] area organized for the purpose of keeping peace in their community[,
which is] an accredited auxillary of the x x x PNP." In the case of Dela Cruz v. People involving
23 24

civilian port personnel conducting security checks, the Court thoroughly discussed that while the Bill
of Rights under Article III of the 1987 Constitution generally cannot be invoked against the acts of
private individuals, the same may nevertheless be applicable if such individuals act under the color
of a state-related function, viz.:

With regard to searches and seizures, the standard imposed on private persons is different from that
imposed on state agents or authorized government authorities.

In People v. Marti, the private forwarding and shipping company, following standard operating
procedure, opened packages sent by accused Andre Marti for shipment to Zurich, Switzerland and
detected a peculiar odor from the packages. The representative from the company found dried
marijuana leaves in the packages. He reported the matter to the National Bureau of Investigation
and brought the samples to the Narcotics Section of the Bureau for laboratory examination. Agents
from the National Bureau of Investigation subsequently took custody of the illegal drugs. Andre Marti
was charged with and was found guilty of violating Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act.

This court held that there was no unreasonable search or seizure. The evidence obtained against
the accused was not procured by the state acting through its police officers or authorized
government agencies. The Bill of Rights does not govern relationships between individuals; it cannot
be invoked against the acts of private individuals:

If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

xxxx
The Cebu Port Authority is clothed with authority by the state to oversee the security of persons and
vehicles within its ports. While there is a distinction between port personnel and port police officers in
this case, considering that port personnel are not necessarily law enforcers, both should be
considered agents of government under Article III of the Constitution. The actions of port personnel
during routine security checks at ports have the color of a state-related function.

In People v. Malngan, barangay tanod and the Barangay Chairman were deemed as law
enforcement officers for purposes of applying Article III of the Constitution. In People v. Lauga, this
court held that a "bantav bayan," in relation to the authority to conduct a custodial investigation
under Article III, Section 12 of the Constitution, "has the color of a state-related function and
objective insofar as the entitlement of a suspect to his constitutional rights[.]"

Thus, with port security personnel's functions having the color of state-related functions and deemed
agents of government, Marti is inapplicable in the present case. x x x. (Emphases and underscoring
25

supplied)

In this light, the Court is convinced that the acts of the Bantay Bayan - or any barangay-based or
other volunteer organizations in the nature of watch groups - relating to the preservation of peace
and order in their respective areas have the color of a state-related function. As such, they should be
deemed as law enforcement authorities for the purpose of applying the Bill of Rights under Article III
of the 1987 Constitution to them. 26

Having established that the Bill of Rights may be applied to the Bantay Bayan operatives who
arrested and subsequently searched petitioner, the Court shall now determine whether such arrest
and search were validly made.

"Section 2, Article III of the 1987 Constitution mandates that a search and seizure must be carried
27

out through or on the strength of a judicial warrant predicated upon the existence of probable cause,
absent which, such search and seizure becomes "unreasonable" within the meaning of said
constitutional provision. To protect the people from unreasonable searches and seizures, Section 3
(2), Article III of the 1987 Constitution provides that evidence obtained from unreasonable
28

searches and seizures shall be inadmissible in evidence for any purpose in any
proceeding. In other words, evidence obtained and confiscated on the occasion of such
unreasonable searches and seizures are deemed tainted and should be excluded for being the
proverbial fruit of a poisonous tree. 29

One of the recognized exceptions to the need [of] a warrant before a search may be [e]ffected is a
search incidental to a lawful arrest. In this instance, the law requires that there first be a lawful
arrest before a search can be made- the process cannot be reversed. 30

A lawful arrest may be effected with or without a warrant. With respect to the latter, the parameters of
Section 5, Rule 113 of the Revised Rules of Criminal Procedure should - as a general rule - be
complied with:

Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

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

The aforementioned provision identifies three (3) instances when warrantless arrests may be lawfully
effected. These are: (a) an arrest of a suspect in flagrante delicto; (b) an arrest of a suspect where,
based on personal knowledge of the arresting officer, there is probable cause that said suspect was
the perpetrator of a crime which had just been committed; and (c) an arrest of a prisoner who has
escaped from custody serving final judgment or temporarily confined during the pendency of his
case or has escaped while being transferred from one confinement to another. 31

In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must concur,
namely: (a) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done
in the presence or within the view of the arresting officer. On the other hand, Section 5 (b), Rule 113
requires for its application that at the time of the arrest, an offense had in fact just been committed
and the arresting officer had personal knowledge of facts indicating that the accused had committed
it.
32

In both instances, the officer's personal knowledge of the fact of the commission of an offense is
essential. Under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure, the officer
himself witnesses the crime; while in Section 5 (b) of the same, he knows for a fact that a crime has
just been committed." 33

In this case, the prosecution claims that the BB Bahoyo and BB Velasquez simply responded to a
purported report of a man showing off his private parts at Kaong Street which led to petitioner's
arrest. On the other hand, petitioner maintains that he was just urinating in front of his workplace
when the Bantay Bayan operatives suddenly approached and questioned him, and thereafter, frisked
and arrested him. BB Bahoyo's testimony on direct and cross-examinations is enlightening on this
matter, to wit:

PROSECUTOR: x x x

xxxx

So, upon seeing Jeffrey Miguel, what did you do?

WITNESS: We approached him and we asked him what was he doing in that place and he appears
to be intoxicated, ma'am.

PROSECUTOR: After questioning him, what did you do?

WITNESS: We asked him from where he is residing and he told us that he is from Caong Street.
PROSECUTOR: What you do next?

WITNESS: Because I also live in Caong and he is not familiar to me, I asked for his I.D, ma'am.

PROSECUTOR: Was he able to produce an I.D?

WITNESS: He was not able to produce any I.D., ma'am.

PROSECUTOR: When he failed to produce any I.D., what did you do?

WITNESS: One of my companions asked him if he has any I.D. with him.

PROSECUTOR: Who was this companion of yours?

WITNESS: Mark Anthony Velasquez, ma'am.

PROSECUTOR: What was the response of Jeffrey to the request of Mark Anthony Velasquez?

WITNESS: He brought out the contents of his pocket and he brought out one pack of Fortune with
one stick inside and another pack, Marlboro light pack with one stick of cigarette and two sticks of
marijuana.

xxxx

[on cross-examination]

ATTY. PUZON: When you saw certain Jeffrey, you were not familiar with him, is that correct?

WITNESS: No, sir, I am not familiar with him.

A TTY. PUZON: And when you saw him, he was already showing his private parts, is that correct?

WITNESS: Yes, sir.

A TTY. PUZON: In your "Pinagsanib na Sinumpaang Salaysay" you stated that when you saw
Jeffrey, his back was turned to you and it seemed that he was peeing. Do you remember saying
1âwphi1

that in your "Pinagsanib na Sinumpaang Salaysay"?

WITNESS: Yes, sir.

A TTY. PUZON: So, is it not true that when you saw him, he was already showing his private parts?

WITNESS: He was showing his private parts, sir.

ATTY. PUZON: While his back turned to you?

WITNESS: Yes, sir.

ATTY. PUZON: How could you see his private parts if his back was turned against you?
WITNESS: He faced us, sir.

xxxx

COURT: Did you charge the accused for urinating in a public place or for showing his private
parts?

WITNESS: No, Your Honor.

ATTY. PUZON: And in fact, only a drug case was filed against Jeffrey?

WITNESS: I have no idea, sir. (Emphases and underscoring supplied) 34

On the other hand, pertinent portions of petitioner's Judicial Affidavit containing his direct testimony
35

read:

Q: Naaalala mo pa ba ang petsang 24 May 2010?

A: Opo. Iyon po ang araw nang aka ay dakpin ng dalawang bantay-bayan.

Q: Ano ang naaalala mo bago ka mahuli, kung mayroon man?

A: Mga bandang pasado alas dose ng hating gabi aka ay umihi sa tapat ng pinagtatrabahuhan ko
ng may biglang lumapit sa akin na dalawang bantay-bayan.

Q: Ano ang sumunod na nangvari x x x, kung mavroon man?

A: Nagtanong po sila kung saan ako nakatira at sinagot ko na nakatira ako sa Kaong St., Brgy. San
Antonio Village, Makati City at pagkatapos ay kinapkapan nila ako.

Q: May nakulta ba sila sa iyo pakatapos kang kapkapan, kung mayroon man?

A: Opo. Nakulta nila ang aking charger, cellphone, lighter at sigarilyong Fortune.

Q: Ano ang sumunod na nangyari, kung mayroon man?

A: Pinosasan nila ako at dinala sa barangay. (Emphases and underscoring supplied)

36

On cross-examination, petitioner testified, as follows:

PROSECUTOR: x x x Mr. Witness, you said that at past 12:00 in the midnight of May 24, 2010 you
were arrested by two Bantay Bayan, do you affirm that Mr. Witness?

WITNESS: Yes, ma'am.

PROSECUTOR: And how did you know that they are Bantay Bayan complement?

WITNESS: They told me that they were Bantay Bayan personnel, ma'am.

PROSECUTOR: What were you doing then, Mr. Witness?

WITNESS: Urinating in front of my place of work, ma'am.

xxxx

PROSECUTOR: And you were working at that time that you were allegedly arrested by these
two Bantay Bayan complement, Mr. Witness?

WITNESS: Not anymore because I was staying in at the company, ma'am.

xxxx

PROSECUTOR: You urinated outside because you do not have a comfort room inside, is it not a
fact, Mr. Witness?

WITNESS: Yes, ma'am.

PROSECUTOR: What is this Fine Home Incorporation doing, Mr. Witness?

WITNESS: I am a caretaker at Fine Home Incorporation I guard the steels, ma'am. (Emphases and
37

underscoring supplied)

On the basis of the foregoing testimonies, the Court is inclined to believe that at around past 12
o'clock in the early morning of May 24, 2010, petitioner went out to the street to urinate when
the Bantay Bayan operatives chanced upon him. The latter then approached and questioned
petitioner, and thereafter, went on to search his person, which purportedly yielded the marijuana
seized from him. Verily, the prosecution's claim that petitioner was showing off his private parts was
belied by the aforesaid testimonies. Clearly, these circumstances do not justify the conduct of an in
jlagrante delicto arrest, considering that there was no overt act constituting a crime committed by
petitioner in the presence or within the view of the arresting officer. Neither do these circumstances
necessitate a "hot pursuit" warrantless arrest as the arresting Bantay Bayan operatives do not have
any personal knowledge of facts that petitioner had just committed an offense.

More importantly, the Court simply finds highly implausible the prosecution's claim that a valid
warrantless arrest was made on petitioner on account of the alleged public display of his private
parts because if it was indeed the case, then the proper charge should have been filed against him.
However, records are bereft of any showing that such charge was filed aside from the instant
criminal charge for illegal possession of dangerous drugs - thereby strengthening the view that no
prior arrest was made on petitioner which led to a search incidental thereto. As stressed earlier,
there must first be a lawful arrest before a search can be made and that such process cannot be
reversed.

All told, the Bantay Bayan operatives conducted an illegal search on the person of petitioner.
Consequently, the marijuana purportedly seized from him on account of such search is rendered
inadmissible in evidence pursuant to the exclusionary rule under Section 3 (2), Article III of the 1987
Constitution. Since the confiscated marijuana is the very corpus delicti of the crime charged,
petitioner must necessarily be acquitted and exonerated from criminal liability.38

WHEREFORE, the petition is GRANTED. The Decision dated October 21, 2015 and the Resolution
dated September 5, 2016 of the Court of Appeals in CA-G.R. CR No. 35318 are
hereby REVERSED and SET ASIDE. Accordingly, petitioner Jeffrey Miguel y Remegio
is ACQUITTED of the crime of illegal possession of dangerous drugs defined and penalized under
Section 11, Article II of Republic Act No. 9165. The Director of the Bureau of Corrections is ordered
to cause his immediate release, unless he is being lawfully held for any other reason.

SO ORDERED.

G.R. No. 168081 October 17, 2008

ARMANDO G. YRASUEGUI, petitioners,

vs.
PHILIPPINE AIRLINES, INC., respondents.

DECISION

REYES, R.T., J.:

THIS case portrays the peculiar story of an international flight steward who was dismissed because
of his failure to adhere to the weight standards of the airline company.

He is now before this Court via a petition for review on certiorari claiming that he was illegally
dismissed. To buttress his stance, he argues that (1) his dismissal does not fall under 282(e) of the
Labor Code; (2) continuing adherence to the weight standards of the company is not a bona fide
occupational qualification; and (3) he was discriminated against because other overweight
employees were promoted instead of being disciplined.

After a meticulous consideration of all arguments pro and con, We uphold the legality of dismissal.
Separation pay, however, should be awarded in favor of the employee as an act of social justice or
based on equity. This is so because his dismissal is not for serious misconduct. Neither is it reflective
of his moral character.

The Facts

Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines, Inc.
(PAL). He stands five feet and eight inches (5’8") with a large body frame. The proper weight for a
man of his height and body structure is from 147 to 166 pounds, the ideal weight being 166 pounds,
as mandated by the Cabin and Crew Administration Manual1 of PAL.

The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on an
extended vacation leave from December 29, 1984 to March 4, 1985 to address his weight concerns.
Apparently, petitioner failed to meet the company’s weight standards, prompting another leave
without pay from March 5, 1985 to November 1985.

After meeting the required weight, petitioner was allowed to return to work. But petitioner’s weight
problem recurred. He again went on leave without pay from October 17, 1988 to February 1989.

On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line with
company policy, he was removed from flight duty effective May 6, 1989 to July 3, 1989. He was
formally requested to trim down to his ideal weight and report for weight checks on several dates. He
was also told that he may avail of the services of the company physician should he wish to do so. He
was advised that his case will be evaluated on July 3, 1989.2
On February 25, 1989, petitioner underwent weight check. It was discovered that he gained, instead
of losing, weight. He was overweight at 215 pounds, which is 49 pounds beyond the limit.
Consequently, his off-duty status was retained.

On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at his
residence to check on the progress of his effort to lose weight. Petitioner weighed 217 pounds,
gaining 2 pounds from his previous weight. After the visit, petitioner made a commitment 3 to reduce
weight in a letter addressed to Cabin Crew Group Manager Augusto Barrios. The letter, in full, reads:

Dear Sir:

I would like to guaranty my commitment towards a weight loss from 217 pounds to 200 pounds from
today until 31 Dec. 1989.

From thereon, I promise to continue reducing at a reasonable percentage until such time that my
ideal weight is achieved.

Likewise, I promise to personally report to your office at the designated time schedule you will set for
my weight check.

Respectfully Yours,

F/S Armando Yrasuegui4

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained
overweight. On January 3, 1990, he was informed of the PAL decision for him to remain grounded
until such time that he satisfactorily complies with the weight standards. Again, he was directed to
report every two weeks for weight checks.

Petitioner failed to report for weight checks. Despite that, he was given one more month to comply
with the weight requirement. As usual, he was asked to report for weight check on different dates. He
was reminded that his grounding would continue pending satisfactory compliance with the weight
standards.5

Again, petitioner failed to report for weight checks, although he was seen submitting his passport for
processing at the PAL Staff Service Division.

On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight check
would be dealt with accordingly. He was given another set of weight check dates. 6 Again, petitioner
ignored the directive and did not report for weight checks. On June 26, 1990, petitioner was required
to explain his refusal to undergo weight checks.7

When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was still
way over his ideal weight of 166 pounds.

From then on, nothing was heard from petitioner until he followed up his case requesting for leniency
on the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and 205 pounds on
November 5, 1992.
On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation
of company standards on weight requirements. He was given ten (10) days from receipt of the
charge within which to file his answer and submit controverting evidence. 8

On December 7, 1992, petitioner submitted his Answer. 9 Notably, he did not deny being overweight.
What he claimed, instead, is that his violation, if any, had already been condoned by PAL since "no
action has been taken by the company" regarding his case "since 1988." He also claimed that PAL
discriminated against him because "the company has not been fair in treating the cabin crew
members who are similarly situated."

On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he was
undergoing a weight reduction program to lose at least two (2) pounds per week so as to attain his
ideal weight.10

On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal
weight, "and considering the utmost leniency" extended to him "which spanned a period covering a
total of almost five (5) years," his services were considered terminated "effective immediately." 11

His motion for reconsideration having been denied, 12 petitioner filed a complaint for illegal dismissal
against PAL.

Labor Arbiter, NLRC and CA Dispositions

On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled13 that petitioner was illegally
dismissed. The dispositive part of the Arbiter ruling runs as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the complainant’s
dismissal illegal, and ordering the respondent to reinstate him to his former position or substantially
equivalent one, and to pay him:

a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until reinstated,
which for purposes of appeal is hereby set from June 15, 1993 up to August 15, 1998 at
₱651,000.00;

b. Attorney’s fees of five percent (5%) of the total award.

SO ORDERED.14

The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of the
job of petitioner.15 However, the weight standards need not be complied with under pain of dismissal
since his weight did not hamper the performance of his duties.16 Assuming that it did, petitioner could
be transferred to other positions where his weight would not be a negative factor. 17 Notably, other
overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being
disciplined.18

Both parties appealed to the National Labor Relations Commission (NLRC). 19

On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement of
petitioner without loss of seniority rights and other benefits.20

On February 1, 2000, the Labor Arbiter denied21 the Motion to Quash Writ of Execution22 of PAL.
On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC. 23

On June 23, 2000, the NLRC rendered judgment 24 in the following tenor:

WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November 1998 as
modified by our findings herein, is hereby AFFIRMED and that part of the dispositive portion of said
decision concerning complainant’s entitlement to backwages shall be deemed to refer to
complainant’s entitlement to his full backwages, inclusive of allowances and to his other benefits or
their monetary equivalent instead of simply backwages, from date of dismissal until his actual
reinstatement or finality hereof. Respondent is enjoined to manifests (sic) its choice of the form of
the reinstatement of complainant, whether physical or through payroll within ten (10) days from
notice failing which, the same shall be deemed as complainant’s reinstatement through payroll and
execution in case of non-payment shall accordingly be issued by the Arbiter. Both appeals of
respondent thus, are DISMISSED for utter lack of merit.25

According to the NLRC, "obesity, or the tendency to gain weight uncontrollably regardless of the
amount of food intake, is a disease in itself."26 As a consequence, there can be no intentional
defiance or serious misconduct by petitioner to the lawful order of PAL for him to lose weight. 27

Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However, it
found as unnecessary the Labor Arbiter holding that petitioner was not remiss in the performance of
his duties as flight steward despite being overweight. According to the NLRC, the Labor Arbiter
should have limited himself to the issue of whether the failure of petitioner to attain his ideal weight
constituted willful defiance of the weight standards of PAL.28

PAL moved for reconsideration to no avail.29 Thus, PAL elevated the matter to the Court of Appeals
(CA) via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. 30

By Decision dated August 31, 2004, the CA reversed31 the NLRC:

WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC decision is
declared NULL and VOID and is hereby SET ASIDE. The private respondent’s complaint is hereby
DISMISSED. No costs.

SO ORDERED.32

The CA opined that there was grave abuse of discretion on the part of the NLRC because it "looked
at wrong and irrelevant considerations"33 in evaluating the evidence of the parties. Contrary to the
NLRC ruling, the weight standards of PAL are meant to be a continuing qualification for an
employee’s position.34 The failure to adhere to the weight standards is an analogous cause for the
dismissal of an employee under Article 282(e) of the Labor Code in relation to Article 282(a). It is not
willful disobedience as the NLRC seemed to suggest.35 Said the CA, "the element of willfulness that
the NLRC decision cites is an irrelevant consideration in arriving at a conclusion on whether the
dismissal is legally proper."36 In other words, "the relevant question to ask is not one of willfulness but
one of reasonableness of the standard and whether or not the employee qualifies or continues to
qualify under this standard."37

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are
reasonable.38 Thus, petitioner was legally dismissed because he repeatedly failed to meet the
prescribed weight standards.39 It is obvious that the issue of discrimination was only invoked by
petitioner for purposes of escaping the result of his dismissal for being overweight. 40
On May 10, 2005, the CA denied petitioner’s motion for reconsideration. 41 Elaborating on its earlier
ruling, the CA held that the weight standards of PAL are a bona fide occupational qualification which,
in case of violation, "justifies an employee’s separation from the service." 42

Issues

In this Rule 45 petition for review, the following issues are posed for resolution:

I.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING

THAT PETITIONER’S OBESITY CAN BE A GROUND FOR DISMISSAL UNDER PARAGRAPH (e)
OF ARTICLE 282 OF THE LABOR CODE OF THE PHILIPPINES;

II.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING

THAT PETITIONER’S DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE "BONA FIDE
OCCUPATIONAL QUALIFICATION (BFOQ) DEFENSE";

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING

THAT PETITIONER WAS NOT UNDULY DISCRIMINATED AGAINST WHEN HE WAS DISMISSED
WHILE OTHER OVERWEIGHT CABIN ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR
PROMOTED;

IV.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT BRUSHED ASIDE
PETITIONER’S CLAIMS FOR REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING MOOT
AND ACADEMIC.43 (Underscoring supplied)

Our Ruling

I. The obesity of petitioner is a ground for dismissal under Article 282(e) 44 of the Labor Code.

A reading of the weight standards of PAL would lead to no other conclusion than that they constitute
a continuing qualification of an employee in order to keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight
standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor Code. As
explained by the CA:

x x x [T]he standards violated in this case were not mere "orders" of the employer; they were the
"prescribed weights" that a cabin crew must maintain in order to qualify for and keep his or her
position in the company. In other words, they were standards that establish continuing
qualifications for an employee’s position. In this sense, the failure to maintain these standards does
not fall under Article 282(a) whose express terms require the element of willfulness in order to be a
ground for dismissal. The failure to meet the employer’s qualifying standards is in fact a ground
that does not squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e)
– the "other causes analogous to the foregoing."
By its nature, these "qualifying standards" are norms that apply prior to and after an employee is
hired. They apply prior to employment because these are the standards a job applicant must
initially meet in order to be hired. They apply after hiring because an employee must continue to
meet these standards while on the job in order to keep his job. Under this perspective, a violation is
not one of the faults for which an employee can be dismissed pursuant to pars. (a) to (d) of Article
282; the employee can be dismissed simply because he no longer "qualifies" for his job irrespective
of whether or not the failure to qualify was willful or intentional. x x x 45

Petitioner, though, advances a very interesting argument. He claims that obesity is a "physical
abnormality and/or illness."46 Relying on Nadura v. Benguet Consolidated, Inc.,47 he says his
dismissal is illegal:

Conscious of the fact that Nadura’s case cannot be made to fall squarely within the specific causes
enumerated in subparagraphs 1(a) to (e), Benguet invokes the provisions of subparagraph 1(f) and
says that Nadura’s illness – occasional attacks of asthma – is a cause analogous to them.

Even a cursory reading of the legal provision under consideration is sufficient to convince anyone
that, as the trial court said, "illness cannot be included as an analogous cause by any stretch of
imagination."

It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others expressly
enumerated in the law are due to the voluntary and/or willful act of the employee. How Nadura’s
illness could be considered as "analogous" to any of them is beyond our understanding, there being
no claim or pretense that the same was contracted through his own voluntary act. 48

The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the
case at bar. First, Nadura was not decided under the Labor Code. The law applied in that case was
Republic Act (RA) No. 1787. Second, the issue of flight safety is absent in Nadura, thus, the
rationale there cannot apply here. Third, in Nadura, the employee who was a miner, was laid off from
work because of illness, i.e., asthma. Here, petitioner was dismissed for his failure to meet the
weight standards of PAL. He was not dismissed due to illness. Fourth, the issue in Nadura is
whether or not the dismissed employee is entitled to separation pay and damages. Here, the issue
centers on the propriety of the dismissal of petitioner for his failure to meet the weight standards of
PAL. Fifth, in Nadura, the employee was not accorded due process. Here, petitioner was accorded
utmost leniency. He was given more than four (4) years to comply with the weight standards of PAL.

In the case at bar, the evidence on record militates against petitioner’s claims that obesity is a
disease. That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for
him to lose weight given the proper attitude, determination, and self-discipline. Indeed, during the
clarificatory hearing on December 8, 1992, petitioner himself claimed that "[t]he issue is could I bring
my weight down to ideal weight which is 172, then the answer is yes. I can do it now." 49

True, petitioner claims that reducing weight is costing him "a lot of expenses." 50 However, petitioner
has only himself to blame. He could have easily availed the assistance of the company physician,
per the advice of PAL.51 He chose to ignore the suggestion. In fact, he repeatedly failed to report
when required to undergo weight checks, without offering a valid explanation. Thus, his fluctuating
weight indicates absence of willpower rather than an illness.

Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and
Hospitals,52decided by the United States Court of Appeals (First Circuit). In that case, Cook worked
from 1978 to 1980 and from 1981 to 1986 as an institutional attendant for the mentally retarded at
the Ladd Center that was being operated by respondent. She twice resigned voluntarily with an
unblemished record. Even respondent admitted that her performance met the Center’s legitimate
expectations. In 1988, Cook re-applied for a similar position. At that time, "she stood 5’2" tall and
weighed over 320 pounds." Respondent claimed that the morbid obesity of plaintiff compromised her
ability to evacuate patients in case of emergency and it also put her at greater risk of serious
diseases.

Cook contended that the action of respondent amounted to discrimination on the basis of a
handicap. This was in direct violation of Section 504(a) of the Rehabilitation Act of 1973, 53 which
incorporates the remedies contained in Title VI of the Civil Rights Act of 1964. Respondent claimed,
however, that morbid obesity could never constitute a handicap within the purview of the
Rehabilitation Act. Among others, obesity is a mutable condition, thus plaintiff could simply lose
weight and rid herself of concomitant disability.

The appellate Court disagreed and held that morbid obesity is a disability under the Rehabilitation
Act and that respondent discriminated against Cook based on "perceived" disability. The evidence
included expert testimony that morbid obesity is a physiological disorder. It involves a dysfunction of
both the metabolic system and the neurological appetite – suppressing signal system, which is
capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular
systems. Notably, the Court stated that "mutability is relevant only in determining the substantiality of
the limitation flowing from a given impairment," thus "mutability only precludes those conditions that
an individual can easily and quickly reverse by behavioral alteration."

Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court for the
District of Rhode Island, Cook was sometime before 1978 "at least one hundred pounds more than
what is considered appropriate of her height." According to the Circuit Judge, Cook weighed "over
320 pounds" in 1988. Clearly, that is not the case here. At his heaviest, petitioner was only less than
50 pounds over his ideal weight.

In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight
attendant, becomes an analogous cause under Article 282(e) of the Labor Code that justifies his
dismissal from the service. His obesity may not be unintended, but is nonetheless voluntary. As the
CA correctly puts it, "[v]oluntariness basically means that the just cause is solely attributable to the
employee without any external force influencing or controlling his actions. This element runs through
all just causes under Article 282, whether they be in the nature of a wrongful action or omission.
Gross and habitual neglect, a recognized just cause, is considered voluntary although it lacks the
element of intent found in Article 282(a), (c), and (d)."54

II. The dismissal of petitioner can be predicated on the bona fide occupational qualification defense.

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national
origin unless the employer can show that sex, religion, or national origin is an actual qualification for
performing the job. The qualification is called a bona fide occupational qualification (BFOQ). 55 In the
United States, there are a few federal and many state job discrimination laws that contain an
exception allowing an employer to engage in an otherwise unlawful form of prohibited discrimination
when the action is based on a BFOQ necessary to the normal operation of a business or
enterprise.56

Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing
for it.57 Further, there is no existing BFOQ statute that could justify his dismissal.58

Both arguments must fail.

First, the Constitution,59 the Labor Code,60 and RA No. 727761 or the Magna Carta for Disabled
Persons62 contain provisions similar to BFOQ.

Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British
Columbia Government and Service Employee’s Union (BCGSEU),63 the Supreme Court of Canada
adopted the so-called "Meiorin Test" in determining whether an employment policy is justified. Under
this test, (1) the employer must show that it adopted the standard for a purpose rationally connected
to the performance of the job;64 (2) the employer must establish that the standard is reasonably
necessary65 to the accomplishment of that work-related purpose; and (3) the employer must
establish that the standard is reasonably necessary in order to accomplish the legitimate work-
related purpose. Similarly, in Star Paper Corporation v. Simbol,66 this Court held that in order to justify
a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the
essential operation of the job involved; and (2) that there is factual basis for believing that all or
substantially all persons meeting the qualification would be unable to properly perform the duties of
the job.67

In short, the test of reasonableness of the company policy is used because it is parallel to
BFOQ.68 BFOQ is valid "provided it reflects an inherent quality reasonably necessary for satisfactory
job performance."69

In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc., 70 the Court did
not hesitate to pass upon the validity of a company policy which prohibits its employees from
marrying employees of a rival company. It was held that the company policy is reasonable
considering that its purpose is the protection of the interests of the company against possible
competitor infiltration on its trade secrets and procedures.

Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute.
Too, the Labor Arbiter,71 NLRC,72 and CA73 are one in holding that the weight standards of PAL are
reasonable. A common carrier, from the nature of its business and for reasons of public policy, is
bound to observe extraordinary diligence for the safety of the passengers it transports. 74 It is bound
to carry its passengers safely as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with due regard for all the circumstances. 75

The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only
logical to hold that the weight standards of PAL show its effort to comply with the exacting obligations
imposed upon it by law by virtue of being a common carrier.

The business of PAL is air transportation. As such, it has committed itself to safely transport its
passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the
cabin flight deck crew who are on board the aircraft. The weight standards of PAL should be viewed
as imposing strict norms of discipline upon its employees.

In other words, the primary objective of PAL in the imposition of the weight standards for cabin crew
is flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order
to inspire passenger confidence on their ability to care for the passengers when something goes
wrong. It is not farfetched to say that airline companies, just like all common carriers, thrive due to
public confidence on their safety records. People, especially the riding public, expect no less than
that airline companies transport their passengers to their respective destinations safely and soundly.
A lesser performance is unacceptable.

The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims
and caprices of the passengers. The most important activity of the cabin crew is to care for the
safety of passengers and the evacuation of the aircraft when an emergency occurs. Passenger
safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who
have the necessary strength to open emergency doors, the agility to attend to passengers in
cramped working conditions, and the stamina to withstand grueling flight schedules.

On board an aircraft, the body weight and size of a cabin attendant are important factors to consider
in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors.
Thus, the arguments of respondent that "[w]hether the airline’s flight attendants are overweight or
not has no direct relation to its mission of transporting passengers to their destination"; and that the
weight standards "has nothing to do with airworthiness of respondent’s airlines," must fail.

The rationale in Western Air Lines v. Criswell76 relied upon by petitioner cannot apply to his case.
What was involved there were two (2) airline pilots who were denied reassignment as flight
engineers upon reaching the age of 60, and a flight engineer who was forced to retire at age 60.
They sued the airline company, alleging that the age-60 retirement for flight engineers violated the
Age Discrimination in Employment Act of 1967. Age-based BFOQ and being overweight are not the
same. The case of overweight cabin attendants is another matter. Given the cramped cabin space
and narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would
certainly have difficulty navigating the cramped cabin area.

In short, there is no need to individually evaluate their ability to perform their task. That an obese
cabin attendant occupies more space than a slim one is an unquestionable fact which courts can
judicially recognize without introduction of evidence.77 It would also be absurd to require airline
companies to reconfigure the aircraft in order to widen the aisles and exit doors just to accommodate
overweight cabin attendants like petitioner.

The biggest problem with an overweight cabin attendant is the possibility of impeding passengers
from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during
emergencies is to speedily get the passengers out of the aircraft safely. Being overweight
necessarily impedes mobility. Indeed, in an emergency situation, seconds are what cabin attendants
are dealing with, not minutes. Three lost seconds can translate into three lost lives. Evacuation might
slow down just because a wide-bodied cabin attendant is blocking the narrow aisles. These
possibilities are not remote.

Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made
known to him prior to his employment. He is presumed to know the weight limit that he must
maintain at all times.78 In fact, never did he question the authority of PAL when he was repeatedly
asked to trim down his weight. Bona fides exigit ut quod convenit fiat. Good faith demands that what
is agreed upon shall be done. Kung ang tao ay tapat kanyang tutuparin ang napagkasunduan.

Too, the weight standards of PAL provide for separate weight limitations based on height and body
frame for both male and female cabin attendants. A progressive discipline is imposed to allow non-
compliant cabin attendants sufficient opportunity to meet the weight standards. Thus, the clear-cut
rules obviate any possibility for the commission of abuse or arbitrary action on the part of PAL.

III. Petitioner failed to substantiate his claim that he was discriminated against by PAL.

Petitioner next claims that PAL is using passenger safety as a convenient excuse to discriminate
against him.79 We are constrained, however, to hold otherwise. We agree with the CA that "[t]he
element of discrimination came into play in this case as a secondary position for the private
respondent in order to escape the consequence of dismissal that being overweight entailed. It is a
confession-and-avoidance position that impliedly admitted the cause of dismissal, including the
reasonableness of the applicable standard and the private respondent’s failure to comply." 80It is a
basic rule in evidence that each party must prove his affirmative allegation. 81

Since the burden of evidence lies with the party who asserts an affirmative allegation, petitioner has
to prove his allegation with particularity. There is nothing on the records which could support the
finding of discriminatory treatment. Petitioner cannot establish discrimination by simply naming the
supposed cabin attendants who are allegedly similarly situated with him. Substantial proof must be
shown as to how and why they are similarly situated and the differential treatment petitioner got from
PAL despite the similarity of his situation with other employees.

Indeed, except for pointing out the names of the supposed overweight cabin attendants, petitioner
miserably failed to indicate their respective ideal weights; weights over their ideal weights; the
periods they were allowed to fly despite their being overweight; the particular flights assigned to
them; the discriminating treatment they got from PAL; and other relevant data that could have
adequately established a case of discriminatory treatment by PAL. In the words of the CA, "PAL
really had no substantial case of discrimination to meet." 82

We are not unmindful that findings of facts of administrative agencies, like the Labor Arbiter and the
NLRC, are accorded respect, even finality.83 The reason is simple: administrative agencies are
experts in matters within their specific and specialized jurisdiction.84 But the principle is not a hard
and fast rule. It only applies if the findings of facts are duly supported by substantial evidence. If it
can be shown that administrative bodies grossly misappreciated evidence of such nature so as to
compel a conclusion to the contrary, their findings of facts must necessarily be reversed. Factual
findings of administrative agencies do not have infallibility and must be set aside when they fail the
test of arbitrariness.85

Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul their
findings.

To make his claim more believable, petitioner invokes the equal protection clause guaranty 86 of the
Constitution. However, in the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked.87 Put differently, the Bill of Rights is not meant to be invoked against
acts of private individuals.88 Indeed, the United States Supreme Court, in interpreting the Fourteenth
Amendment,89 which is the source of our equal protection guarantee, is consistent in saying that the
equal protection erects no shield against private conduct, however discriminatory or
wrongful.90 Private actions, no matter how egregious, cannot violate the equal protection guarantee. 91

IV. The claims of petitioner for reinstatement and wages are moot.

As his last contention, petitioner avers that his claims for reinstatement and wages have not been
mooted. He is entitled to reinstatement and his full backwages, "from the time he was illegally
dismissed" up to the time that the NLRC was reversed by the CA.92

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee,
insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending
appeal. The employee shall either be admitted back to work under the same terms and conditions
prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in
the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement
provided herein.
The law is very clear. Although an award or order of reinstatement is self-executory and does not
require a writ of execution,93 the option to exercise actual reinstatement or payroll reinstatement
belongs to the employer. It does not belong to the employee, to the labor tribunals, or even to the
courts.

Contrary to the allegation of petitioner that PAL "did everything under the sun" to frustrate his
"immediate return to his previous position,"94 there is evidence that PAL opted to physically reinstate
him to a substantially equivalent position in accordance with the order of the Labor Arbiter. 95 In fact,
petitioner duly received the return to work notice on February 23, 2001, as shown by his signature. 96

Petitioner cannot take refuge in the pronouncements of the Court in a case97 that "[t]he unjustified
refusal of the employer to reinstate the dismissed employee entitles him to payment of his salaries
effective from the time the employer failed to reinstate him despite the issuance of a writ of
execution"98 and ""even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is
obligatory on the part of the employer to reinstate and pay the wages of the employee during the
period of appeal until reversal by the higher court." 99 He failed to prove that he complied with the
return to work order of PAL. Neither does it appear on record that he actually rendered services for
PAL from the moment he was dismissed, in order to insist on the payment of his full backwages.

In insisting that he be reinstated to his actual position despite being overweight, petitioner in effect
wants to render the issues in the present case moot. He asks PAL to comply with the impossible.
Time and again, the Court ruled that the law does not exact compliance with the impossible. 100

V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.

Normally, a legally dismissed employee is not entitled to separation pay. This may be deduced from
the language of Article 279 of the Labor Code that "[a]n employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his
full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of his actual
reinstatement." Luckily for petitioner, this is not an ironclad rule.

Exceptionally, separation pay is granted to a legally dismissed employee as an act "social

justice,"101 or based on "equity."102 In both instances, it is required that the dismissal (1) was not for
serious misconduct; and (2) does not reflect on the moral character of the employee. 103

Here, We grant petitioner separation pay equivalent to one-half (1/2) month’s pay for every year of
service.104 It should include regular allowances which he might have been receiving. 105 We are not
blind to the fact that he was not dismissed for any serious misconduct or to any act which would
reflect on his moral character. We also recognize that his employment with PAL lasted for more or
less a decade.

WHEREFORE, the appealed Decision of the Court of Appeals is AFFIRMED but MODIFIED in that
petitioner Armando G. Yrasuegui is entitled to separation pay in an amount equivalent to one-half
(1/2) month’s pay for every year of service, which should include his regular allowances.

SO ORDERED.
G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation
to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the
Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages.
Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich,
Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his
name, passport number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books, cigars,
and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed
at the bottom and on top of the packages before the box was sealed with masking tape, thus
making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure,
opened the boxes for final inspection. When he opened appellant's box, a peculiar odor
emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly
containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the gloves. He made an opening
 on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp.
29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-
6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila
(tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the
cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have
been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis
supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof,
after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's
Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section
for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as
the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED

AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED

FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.
 THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF
THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation
of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity
of one's person, whether citizen or alien, from interference by government, included in which
is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is
his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon
to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in the right of
unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
 The search of which appellant complains, however, was made by a private citizen — the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence***complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them of
the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."

The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill
of Rights does is to declare some forbidden zones in the private sphere inaccessible to any
power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by
the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against
the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law enforcers
testified that accused/appellant was informed of his constitutional rights. It is presumed that they
have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the
other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did
you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have examined
the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply
with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person
would not simply entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,
he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke,
37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even
bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the
contract as the owner and shipper thereof giving more weight to the presumption that things which a
person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

G.R. No. 209387, January 11, 2016

ERWIN LIBO-ON DELA CRUZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.

Routine baggage inspections conducted by port authorities, although done without search warrants, are not
unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety of the traveling public.

For resolution is a Petition for Review on Certiorari1 assailing the Decision2 dated September 28, 2012 and
the Resolution3 dated August 23, 2013 of the Court of Appeals, Cebu City. 4 The Court of Appeals
affirmed5 the trial court's Judgment6 finding petitioner Erwin Libo-on Dela Cruz (Dela Cruz) guilty beyond
reasonable doubt of possessing unlicensed firearms under Commission on Elections Resolution No. 7764 7in
relation to Section 2618 of Batas Pambansa Big. 8819 during the 2007 election period.10

Dela Cruz was an on-the-job trainee of an inter-island vessel. He frequently traveled, "coming back and
forth taking a vessel."12 At around 12:00 noon of May 11, 2007, Dela Cruz was at a pier of the Cebu
Domestic Port to go home to Iloilo.13While buying a ticket, he allegedly left his bag on the floor with a
porter.14 It took him around 15 minutes to purchase a ticket.15

Dela Cruz then proceeded to the entrance of the terminal and placed his bag on the x-ray scanning machine
for inspection.16 The operator of the x-ray machine saw firearms inside Dela Cruz's bag. 17
Cutie Pie Flores (Flores) was the x-ray machine operator-on-duty on May 11, 2007. 18 She saw the
impression of what appeared to be three (3) firearms inside Dela Cruz's bag. 19 Upon seeing the suspected
firearms, she called the attention of port personnel Archie Igot (Igot) who was the baggage inspector then. 20

Igot asked Dela Cruz whether he was the owner of the bag. 21 Dela Cruz answered Igot in the affirmative and
consented to Igot's manual inspection of the bag.22

"Port Police Officer Adolfo Abregana [(Officer Abregana)] was on duty at the terminal of the Cebu Domestic
Port in Pier 1-G when his attention was called by ... Igot." 23 Igot told Officer Abregana that there were
firearms in a bag owned by a certain person.24 Igot then pointed to the person.25 That person was later
identified as Dela Cruz.26

Dela Cruz admitted that he was owner of the bag.27 The bag was then inspected and the following items
were found inside: three (3) revolvers; NBI clearance; seaman's book; other personal items; and four (4)
live ammunitions placed inside the cylinder. 28 When asked whether he had the proper documents for the
firearms, Dela Cruz answered in the negative.29

Dela Cruz was then arrested and informed of his violation of a crime punishable by law. 30 He was also
informed of his constitutional rights.31

In the Information dated November 19, 2003, Dela Cruz was charged with violation of Republic Act No. 8294
for illegal possession of firearms.32 chanroblesvirtuallawlibrary

Criminal Case No. CBU -80084

That on or about the 11th day of May 2007, at about 12:45 p.m. in the City of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, with the deliberate intent and without being
authorized by law, did then and there possess and carry outside his residence one (1) Cal. 38 Simith [sic] &
Wesson revolver without serial number; one (1) .22 Smith & Wesson Magnum revolver without serial
number; one (1) North American Black Widow magnum revolver without serial number and four rounds of
live ammunitions for cal. 38 without first securing the necessary license to possess and permit to carry from
the proper authorities.

CONTRARY TO LAW.33
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Subsequently, another Information was filed charging Dela Cruz with the violation of Commission on
Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 881 34 chanroblesvirtuallawlibrary

Criminal Case No. CBU 80085

That on or about the 11th day of May 2007, at about 12:45 in the afternoon, which is within the election
period for the May 14, 2007 National and Local Elections, in the City of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there possess and
carry outside his residence the following

One (1) cal. .38 Simith [sic] & Wesson revolver without serial number; One (1) cal. .22 Smith & Wesson
Magnum revolver without serial number; One (1) North American Black Widow magnum revolver without
serial number and four (4) rounds of live ammunitions for cal. 38.

CONTRARY TO LAW.35
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Dela Cruz entered a plea of not guilty to both charges during arraignment. 36

After trial, Branch 12 of the Regional Trial Court, Cebu City found Dela Cruz guilty beyond reasonable doubt
of violating the Gun Ban under Commission on Elections Resolution No. 7764, in relation to Section 261 of
Batas Pambansa Blg. 881 in Criminal Case No. CBU 80085.37 Dela Cruz was sentenced to suffer
imprisonment of one (1) year with disqualification from holding public office and the right to suffrage. 38

According to the trial court, the prosecution was able to prove beyond reasonable doubt that Dela Cruz
committed illegal possession of firearms.39 It proved the following elements: "(a) the existence of the
subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or
permit to possess the same."40 The prosecution presented the firearms and live ammunitions found in Dela
Cruz's possession.41 It also presented three (3) prosecution witnesses who testified that the firearms were
found inside Dela Cruz's bag.42 The prosecution also presented a Certification that Dela Cruz did not file any
application for license to possess a firearm, and he was not given authority to carry a firearm outside his
residence.43

The trial court also held that the search conducted by the port authorities was reasonable and, thus,
valid44 chanroblesvirtuallawlibrary

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused's constitutional rights. Hence, when the search of the
bag of the accused revealed the firearms and ammunitions, accused is deemed to have been caught
in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of
Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against [the] accused.45
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The trial court did not give credence to Dela Cruz's claim that the firearms were "planted" inside his bag by
the porter or anyone who could have accessed his bag while he was buying a ticket. 46 According to the trial
court, Dela Cruz's argument was "easy to fabricate, but terribly difficult to disprove." 47 Dela Cruz also did not
show improper motive on the part of the prosecution witnesses to discredit their testimonies. 48

The trial court dismissed the case for violation of Republic Act No. 8294. 49 It held that "Republic Act No.
8294 penalizes simple illegal possession of firearms, provided that the person arrested committed 'no other
crime.'"50 Dela Cruz, who had been charged with illegal possession of firearms, was also charged with
violating the Gun Ban under Commission on Elections Resolution No. 7764. 51

The dispositive portion of the trial court's Consolidated Judgment reads

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of violation of COMELEC
Resolution No. 7764 in relation to Section 261 of BP Blg. 881 in Criminal Case No. CBU-80085, and hereby
sentences him to suffer an imprisonment for a period of one (1) year, and to suffer disqualification to hold
public office and deprivation of the right to suffrage.

While Criminal Case No. CBU-80084 for Violation of RA 8294 is hereby DISMISSED. Accordingly, the cash
bond posted by accused therein for his provisional liberty is hereby ordered cancelled and released to said
accused.

The subject firearms (Exhs. "H", "I" & "J"), and the live ammunitions (Exhs. "K to K-2"") shall, however,
remain in custodia legis for proper disposition of the appropriate government agency.

SO ORDERED.52 (Emphasis in the original)

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On appeal, the Court of Appeals affirmed the trial court's Judgment. 53 It held that the defense failed to show
that the prosecution witnesses were moved by improper motive; thus, their testimonies are entitled to full
faith and credit.54 The acts of government authorities were found to be regular. 55

The Court of Appeals did not find Dela Cruz's defense of denial meritorious. 56 "Denial as a defense has been
viewed upon with disfavor by the courts due to the ease with which it can be concocted." 57 Dela Cruz did not
present any evidence "to show that he had authority to carry outside of residence firearms and ammunition
during the period of effectivity of the Gun Ban [during] election time." The prosecution was able to prove
Dela Cruz's guilt beyond reasonable doubt.

The dispositive portion of the assailed Decision provides

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed January 27, 2010
Consolidated Judgment of the Regional Trial Court (RTC), Branch 12 of Cebu City in Criminal Case CBU-
59434 is hereby AFFIRMED. Costs on accused-appellant.

SO ORDERED.59 (Emphasis in the original)

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Dela Cruz filed a Motion for Reconsideration,60 which was denied by the Court of Appeals in its Resolution
dated August 23, 2013.61

Dela Cruz filed this Petition on November 4, 2013.62 In the Resolution63 dated December 9, 2013, this court
required respondent, through the Office of the Solicitor General, to submit its Comment on the Petition.
Respondent submitted its Comment64 on March 6, 2014, which this court noted in the Resolution 65 dated
March 19, 2014.

Dela Cruz claims that he was an on-the-job trainee for an inter-island vessel. 66 He was "well[-]acquainted
with [the] inspection scheme [at the] ports."67 He would not have risked placing prohibited items such as
unlicensed firearms inside his luggage knowing fully the consequences of such an action. 68

According to Dela Cruz, when he arrived at the port on May 11, 2007, he left his luggage with a porter to
buy a ticket.69 "A considerable time of fifteen minutes went by before he could secure the ticket while his
luggage was left sitting on the floor with only the porter standing beside it." 70 He claims that someone must
have placed the unlicensed firearms inside his bag during the period he was away from it. 71 He was
surprised when his attention was called by the x-ray machine operator after the firearms were detected. 72

Considering the circumstances, Dela Cruz argues that there was no voluntary waiver against warrantless
search73chanroblesvirtuallawlibrary

In petitioner's case, it may well be said that, with the circumstances attending the search of his luggage, he
had no actual intention to relinquish his right against warrantless searches. He knew in all honest belief that
when his luggage would pass through the routine x-ray examination, nothing incriminating would be
recovered. It was out of that innocent confidence that he allowed the examination of his luggage. . . . [H]e
believed that no incriminating evidence wfouldj be found. He knew he did not place those items. But
what is strikingly unique about his situation is that a considerable time interval lapsed, creating an
opportunity for someone else to place inside his luggage those incriminating items. 74 (Emphasis in the
original) cralawlawlibrary

Respondent argues that there was a valid waiver of Dela Cruz's right to unreasonable search and seizure,
thus warranting his conviction.75 Dela Cruz was "caught in flagrante delicto carrying three (3) revolvers and
four (4) live ammunitions when his bag went through the x-ray machine in the Cebu Domestic Port on May
11, 2007, well within the election period."76 The firearms were seized during a routine baggage x-ray at the
port of Cebu, a common seaport security procedure.77

According to respondent, this case is similar to valid warrantless searches and seizures conducted by airport
personnel pursuant to routine airport security procedures.78

Records are also clear that Dela Cruz voluntarily waived his right to unreasonable searches and seizure. 79The
trial court found that Dela Cruz voluntarily gave his consent to the search. 80

Dela Cruz's claim that his bag was switched is also baseless. 81 The witnesses categorically testified that Dela
Cruz was "in possession of the bag before it went through the x-ray machine, and he was also in possession
of the same bag that contained the firearms when he was apprehended." 82

Dela Cruz raised the lone issue of "whether the Court of Appeals gravely erred in finding [him] guilty beyond
reasonable doubt of the crime charged despite the failure of the prosecution to establish his guilt beyond
reasonable doubt[.]"83

The issues for resolution in this case are

First, whether petitioner Erwin Libo-on Dela Cruz was in possession of the illegal firearms within the
meaning of the Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa
Blg. 881;

Second, whether petitioner waived his right against unreasonable searches and seizures; and

Lastly, assuming that there was no waiver, whether there was a valid search and seizure in this case.
We deny the Petition.

The present criminal case was brought to this court under Rule 45 of the Rules of Court. The penalty
imposed on petitioner by the trial court is material in determining the mode of appeal to this court. A
petition for review on certiorari under Rule 45 must be differentiated from appeals under Rule 124, Section
1384 involving cases where the lower court imposed on the accused the penalty of reclusion perpetua, life
imprisonment, or, previously, death.85

In Mercado v. People86 chanroblesvirtuallawlibrary

Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at
least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from
entering judgment thereon, certify the case and elevate the entire records to this Court for review. This will
obviate the unnecessary, pointless and time-wasting shuttling of criminal cases between this Court and the
Court of Appeals, for by then this Court will acquire jurisdiction over the case from the very inception and
can, without bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do
justice in the case.

On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a review of
the case may be had only by petition for review on certiorari under Rule 45 where only errors or questions
of law may be raised.87 (Emphasis supplied, citations omitted) cralawlawlibrary

It is settled that in petitions for review on certiorari, only questions of law are reviewed by this court. 88The
rule that only questions of law may be raised in a petition for review under Rule 45 is based on sound and
practical policy considerations stemming from the differing natures of a question of law and a question of
fact

A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative
value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact exists
when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration
of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances as well as their relation to each other and to the whole, and the
probability of the situation.89
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Concomitantly, factual findings of the lower courts as affirmed by the Court of Appeals are binding on this
court.90

In contrast, an appeal in a criminal case "throws the whole case open for review[.]" 91 The underlying
principle is that errors in an appealed judgment, even if not specifically assigned, may be corrected motu
propio by the court if the consideration of these errors is necessary to arrive at a just resolution of the
case.92 Nevertheless, "the right to appeal is neither a natural right nor a part of due process, it being merely
a statutory privilege which may be exercised only in the manner provided for by law[.]" 93

II

Petitioner argues that the firearms found in his bag were not his. Thus, he could not be liable for possessing
the contraband. Key to the resolution of this case is whether petitioner possessed firearms without the
necessary authorization from the Commission on Elections. Petitioner was charged under special laws:
Republic Act No. 8294 and Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881.

The law applicable is Section 2(a) of Commission on Elections Resolution No. 7764, which provides

SECTION 2. Prohibitions. During the election period from January 14, 2007 it shall be unlawful for
 a. Any person, including those possessing a permit to carry firearms outside of residence or
place of business, to bear, carry or transport firearms or other deadly weapons in public
places including any building, street, park, private vehicle or public conveyance. For the
purpose firearm includes airgun, while deadly weapons include hand grenades or other
explosives, except pyrotechnics[.]
cralawlawlibrary

Section 261 (q) of Batas Pambansa Blg. 881 states

Section 261. Prohibited Acts. - The following shall be guilty of an election offense

....

(q) Carrying firearms outside residence or place of business. - Any person who, although possessing a
permit to carry firearms, carries any firearms outside his residence or place of business during the election
period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft
shall not be considered a residence or place of business or extension hereof. (Par. (1), Id.)

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or
to persons who by nature of their official duties, profession, business or occupation habitually carry large
sums of money or valuables.
cralawlawlibrary

For a full understanding of the nature of the constitutional rights involved, we will examine three (3) points
of alleged intrusion into the right to privacy of petitioner: first, when petitioner gave his bag for x-ray
scanning to port authorities; second, when the baggage inspector opened petitioner's bag and called the
Port Authority Police; and third, when the police officer opened the bag to search, retrieve, and seize the
firearms and ammunition.

III

The first point of intrusion occurred when petitioner presented his bag for inspection to port personnel—the
x-ray machine operator and baggage inspector manning the x-ray machine station. 94 With regard to
searches and seizures, the standard imposed on private persons is different from that imposed on state
agents or authorized government authorities.

In People v. Marti,95 the private forwarding and shipping company, following standard operating procedure,
opened packages sent by accused Andre Marti for shipment to Zurich, Switzerland and detected a peculiar
odor from the packages.96 The representative from the company found dried marijuana leaves in the
packages.97 He reported the matter to the National Bureau of Investigation and brought the samples to the
Narcotics Section of the Bureau for laboratory examination.98 Agents from the National Bureau of
Investigation subsequently took custody of the illegal drugs. 99 Andre Marti was charged with and was found
guilty of violating Republic Act No. 6425, otherwise known as the Dangerous Drugs Act. 100

This court held that there was no unreasonable search or seizure. 101 The evidence obtained against the
accused was not procured by the state acting through its police officers or authorized government
agencies.102 The Bill of Rights does not govern relationships between individuals; it cannot be invoked
against the acts of private individuals103 chanroblesvirtuallawlibrary

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to
pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor
of a private establishment for its own and private purposes, as in the case at bar, and without the
intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for
only the act of private individual, not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to
bring it within the ambit of alleged unlawful intrusion by the government. 104
cralawlawlibrary
ChanRoblesVirtualawlibrary

Hence, by virtue of Marti, items seized pursuant to a reasonable search conducted by private persons are
not covered by the exclusionary rule.105
To determine whether the intrusion by the port personnel in this case was committed by private or public
persons, we revisit the history and organizational structure of the Philippine Ports Authority.

Port security measures are consistent with the country's aim to develop transportation and trade in
conjunction with national and economic growth. In 1974, the Philippine Ports Authority was created for the
reorganization of port administration and operation functions. 106 The Philippine Ports Authority's Charter was
later revised through Presidential Decree No. 857. The Revised Charter provided that the Authority may

after consultation with relevant Government agencies, make rules or regulations for the planning,
development, construction, maintenance, control, supervision and management of any Port or Port District
and the services to be provided therein, and for the maintenance of good order therein, and generally for
carrying out the process of this Decree.107cralawlawlibrary

The Philippine Ports Authority was subsequently given police authority through Executive Order No.
513,108 which provides

Sec. 2. Section 6 is hereby amended by adding a new paragraph to read as follows

Section 6-c. Police Authority - The Authority shall have such police authority within the ports administered
by it as may be necessary to carry out its powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement
bodies within the area. Such police authority shall include the following

a) To provide security to cargoes, port equipment, structure, facilities, personnel and documents: Provided,
however, That in ports of entry, physical security to import and export cargoes shall be exercised jointly
with the Bureau of Customs;

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft;

c) To maintain peace and order inside the port, in coordination with local police authorities;

d) To supervise private security agencies operating within the port area; and

e) To enforce rules and regulations promulgated by the Authority pursuant to law. (Emphasis supplied)
cralawlawlibrary

In 1992, the Cebu Port Authority was created to specifically administer all ports located in the Province of
Cebu.109 The Cebu Port Authority is a "public-benefit corporation . . . under the supervision of the
Department of Transportation and Communications for purposes of policy coordination." 110 Control of the
ports was transferred to the Cebu Port Authority on January 1, 1996, when its operations officially began. 111

In 2004, the Office for Transportation Security was designated as the "single authority responsible for the
security of the transportation systems [in] the country[.]"112 Its powers and functions included providing
security measures for all transportation systems in the country

b. Exercise operational control and supervision over all units of law enforcement agencies and agency
personnel providing security services in the transportation systems, except for motor vehicles in land
transportation, jointly with the heads of the bureaus or agencies to which the units or personnel organically
belong or are assigned;

c. Exercise responsibility for transportation security operations including, but not limited to, security
screening of passengers, baggage and cargoes, and hiring, retention, training and testing of security
screening personnel;

d. In coordination with the appropriate agencies and/or instrumentalities of the government, formulate,
develop, promulgate and implement comprehensive security plans, policies, measures, strategies and
programs to ably and decisively deal with any threat to the security of transportation systems, and
continually review, assess and upgrade such security plans, policies, measures, strategies and programs, to
improve and enhance transportation security and ensure the adequacy of these security measures;

e. Examine and audit the performance of transportation security personnel, equipment and facilities, and,
thereafter, establish, on a continuing basis, performance standards for such personnel, equipment and
facilities, including for the training of personnel;

f. Prepare a security manual/master plan or programme which shall prescribe the rules and regulations for
the efficient and safe operation of all transportation systems, including standards for security screening
procedures, prior screening or profiling of individuals for the issuance of security access passes, and
determination of levels of security clearances for personnel of the OTS, the DOTC and its attached agencies,
and other agencies of the government;

g. Prescribe security and safety standards for all transportation systems in accordance with existing laws,
rules, regulations and international conventions;

h. Subject to the approval of the Secretary of the DOTC, issue Transportation Security Regulations/Rules
and amend, rescind or revise such regulations or rules as may be necessary for the security of the
transportation systems of the country[.]113 (Emphasis supplied) cralawlawlibrary

The Cebu Port Authority has adopted security measures imposed by the Office for Transportation Security,
including the National Security Programme for Sea Transport and Maritime Infrastructure. 114

The Cebu Port Authority is clothed with authority by the state to oversee the security of persons and
vehicles within its ports. While there is a distinction between port personnel and port police officers in this
case, considering that port personnel are not necessarily law enforcers, both should be considered agents of
government under Article III of the Constitution. The actions of port personnel during routine security
checks at ports have the color of a state-related function.

In People v. Malngan,115 barangay tanod and the Barangay Chairman were deemed as law enforcement
officers for purposes of applying Article III of the Constitution. 116 In People v. Lauga,117 this court held that a
"bantay bayan," in relation to the authority to conduct a custodial investigation under Article III, Section
12118 of the Constitution, "has the color of a state-related function and objective insofar as the entitlement of
a suspect to his constitutional rights[.]"119

Thus, with port security personnel's functions having the color of state-related functions and deemed agents
of government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to port security
measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic
ports are akin to routine security procedures in airports.

In People v. Suzuki,120 the accused "entered the pre-departure area of the Bacolod Airport Terminal." 121He
was "bound for Manila via flight No. 132 of the Philippine Airlines and was carrying a small traveling bag and
a box marked 'Bongbong's piaya."122 The accused "proceeded to the 'walk through metal detector,' a
machine which produces a red light and an alarm once it detects the presence of metallic substance or
object."123 "Thereupon, the red light switched on and the alarm sounded, signifying the presence of metallic
substance either in his person or in the box he was carrying." 124 When the accused was asked to open the
content of the box, he answered "open, open."125 Several packs of dried marijuana fruiting tops were then
found inside the box.126 Suzuki argued that the box was only given to him as "pasalubong" by a certain
Pinky, whom he had sexual relations with the night before. 127 He did not know the contents of the box.128

This court in Suzuki found that the search conducted on the accused was a valid exception to the prohibition
against warrantless searches as it was pursuant to a routine airport security procedure 129 chanroblesvirtuallawlibrary

It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved
according to the facts of each case. Given the circumstances obtaining here, we find the search conducted
by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when
the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been
caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the
Rules of Criminal Procedure. The packs of marijuana obtained in the course of such valid search are thus
admissible as evidence against appellant.130 (Citations omitted) cralawlawlibrary
The reason behind it is that there is a reasonable reduced expectation of privacy when coming into airports
or ports of travel

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to
the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is
prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With
increased concern over airplane hijacking and terrorism has come increased security at the nation's airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage
as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the
presence of suspicious objects, physical searches are conducted to determine what the objects are. There is
little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are
often notified through airport public address systems, signs and notices in their airline tickets that they are
subject to search and, if any prohibited materials or substances are found, such would be subject to seizure.
These announcements place passengers on notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine airport procedures. 131 (Emphasis supplied,
citations omitted)cralawlawlibrary

This rationale was reiterated more recently in Sales v. People.132 This court in Sales upheld the validity of the
search conducted as part of the routine security check at the old Manila Domestic Airport—now Terminal 1 of
the Ninoy Aquino International Airport.133

Port authorities were acting within their duties and functions when it used x-ray scanning machines for
inspection of passengers' bags.134 When the results of the x-ray scan revealed the existence of firearms in
the bag, the port authorities had probable cause to conduct a search of petitioner's bag. Notably, petitioner
did not contest the results of the x-ray scan.

IV

Was the search rendered unreasonable at the second point of intrusion—when the baggage inspector
opened petitioner's bag and called the attention of the port police officer?

We rule in the negative.

The port personnel's actions proceed from the authority and policy to ensure the safety of travelers and
vehicles within the port. At this point, petitioner already submitted himself and his belongings to inspection
by placing his bag in the x-ray scanning machine.

The presentation of petitioner's bag for x-ray scanning was voluntary. Petitioner had the choice of whether
to present the bag or not. He had the option not to travel if he did not want his bag scanned or inspected. X-
ray machine scanning and actual inspection upon showing of probable cause that a crime is being or has
been committed are part of reasonable security regulations to safeguard the passengers passing through
ports or terminals. Probable cause is

reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a

cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of
such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense
has been committed, and that the items, articles or objects sought in connection with said offense or subject
to seizure and destruction by law are in the place to be searched. 135cralawlawlibrary

It is not too burdensome to be considered as an affront to an ordinary person's right to travel if weighed
against the safety of all passengers and the security in the port facility.

As one philosopher said, the balance between authority and an individual's liberty may be confined within
the harm that the individual may cause others. John Stuart Mill's "harm principle" provides

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self-protection. That the only purpose for which power can be rightfully
exercised over any member of a civilised community, against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear
because it will be better for him to do so, because it will make him happier, because, in the opinions of
others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or
reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with
any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be
calculated to produce evil to someone else. The only part of the conduct of any one, for which he is
amenable to society, is that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign.136cralawlawlibrary

Any perceived curtailment of liberty due to the presentation of person and effects for port security measures
is a permissible intrusion to privacy when measured against the possible harm to society caused by lawless
persons.

A third point of intrusion to petitioner's right to privacy occurred during petitioner's submission to port
security measures. This court should determine whether the requirements for a valid waiver against
unreasonable searches and seizures were met.

After detection of the firearms through the x-ray scanning machine and inspection by the baggage inspector,
Officer Abregana was called to inspect petitioner's bag.

The Constitution safeguards a person's right against unreasonable searches and seizures. 137 A warrantless
search is presumed to be unreasonable.138 However, this court lays down the exceptions where warrantless
searches are deemed legitimate: (1) warrantless search incidental to a lawful arrest; (2) seizure in "plain
view"; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and
frisk; and (7) exigent and emergency circumstances.139

In Caballes v. Court of Appeals140chanroblesvirtuallawlibrary

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person
involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person
had an actual intention to relinquish the right.141 cralawlawlibrary

Petitioner anchors his case on the claim that he did not validly consent to the search conducted by the port
authorities. He argues that he did not have an actual intention to relinquish his right against a warrantless
search.

In cases involving the waiver of the right against unreasonable searches and seizures, events must be
weighed in its entirety. The trial court's findings show that petitioner presented his bag for scanning in the
x-ray machine.142 When his bag went through the x-ray machine and the firearms were detected, he
voluntarily submitted his bag for inspection to the port authorities

Prosecutor Narido

Q. What did he tell you?

A. I asked him if I can check his bag?

Q. What was his response?

A. He consented and cooperated. I checked the bag.143 cralawlawlibrary

It was after the port personnel's inspection that Officer Abregana's attention was called and the bag was
inspected anew with petitioner's consent.144

"[A]ppellate courts accord the highest respect to the assessment of witnesses' credibility by the trial court,
because the latter was in a better position to observe their demeanor and deportment on the witness
stand." We do not find anything erroneous as to the findings of fact of both the trial court and the Court of
Appeals.

There was probable cause that petitioner was committing a crime leading to the search of his personal
effects. As the trial court found

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused's constitutional rights. Hence, when the search of the
bag of the accused revealed the firearms and ammunitions, accused is deemed to have been caught in
flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of
Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against [the] accused.146 cralawlawlibrary

Similar to the accused in People v. Kagui Malasugui174 and People v. Omaweng148 who permitted authorities
to search their persons and premises without a warrant, petitioner is now precluded from claiming an invalid
warrantless search when he voluntarily submitted to the search on his person. In addition, petitioner's
consent to the search at the domestic port was not given under intimidating or coercive circumstances. 149

This case should be differentiated from that of Aniag, Jr. v. Commission on Elections,150 which involved the
search of a moving vehicle at a checkpoint.151 In that case, there was no implied acquiescence to the search
since the checkpoint set up by the police authorities was conducted without proper consultation, and it left
motorists without any choice except to subject themselves to the checkpoint

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of
petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines
shall be made to ensure that no infringement of civil and political rights results from the implementation of
this authority," and that "the places and manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution
No. 2323." The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13
January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of
impending checkpoints without necessarily giving their locations, and the reason for the same have been
announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs
informing the public of the purpose of its operation. As a result, motorists passing that place did not have
any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop
and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny.
Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for
the police to arrest the motorist and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen
(14) armed policemen conducting the operation, driver Arellano being alone and a mere employee of
petitioner could not have marshalled the strength and the courage to protest against the extensive search
conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more
than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or
coercive circumstances is no consent within the purview of the constitutional guaranty. 152 (Emphasis
supplied, citations omitted)
cralawlawlibrary

We also cannot subscribe to petitioner's argument that there was no . valid consent to the search because
his consent was premised on his belief that there were no prohibited items in his bag. The defendant's belief
that no incriminating evidence would be found does not automatically negate valid consent to the search
when incriminating items are found. His or her belief must be measured against the totality of the
circumstances.153 Again, petitioner voluntarily submitted himself to port security measures and, as he
claimed during trial, he was familiar with the security measures since he had been traveling back and forth
through the sea port.

Consequently, we find respondent's argument that the present petition falls under a valid consented search
and during routine port security procedures meritorious. The search conducted on petitioner's bag is valid.

VI
The consented search conducted on petitioner's bag is different from a customs search.

Customs searches, as exception to the requirement of a valid search warrant, are allowed when "persons
exercising police authority under the customs law . . . effect search and seizure ... in the enforcement of
customs laws."154 The Tariff and Customs Code provides the authority for such warrantless search, as this
court ruled in Papa, et at. v. Mago, et al.155
chanroblesvirtuallawlibrary

The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to
enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house;
and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or
any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without
mentioning the need of a search warrant in said cases.156 (Citation omitted)
cralawlawlibrary

The ruling in Papa was echoed in Salvador v. People,157 in that the state's policy to combat smuggling must
not lose to the difficulties posed by the debate on whether the state has the duty to accord constitutional
protection to dutiable articles on which duty has not been paid, as with a person's papers and/or effects. 158

Hence, to be a valid customs search, the requirements are: (1) the person/s conducting the search
was/were exercising police authority under customs law; (2) the search was for the enforcement of customs
law; and (3) the place searched is not a dwelling place or house. Here, the facts reveal that the search was
part of routine port security measures. The search was not conducted by persons authorized under customs
law. It was also not motivated by the provisions of the Tariff and Customs Code or other customs laws.
Although customs searches usually occur within ports or terminals, it is important that the search must be
for the enforcement of customs laws.

VII

In violations of the Gun Ban, the accused must be "in possession of a firearm . . . outside of his residence
within the period of the election gun ban imposed by the COMELEC sans authority[.]"159

In Abenes v. Court of Appeals,160 this court enumerated the elements for a violation of the Gun Ban: "1) the
person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs
during the election period; and, 3) the weapon is carried in a public place." 161 This court also ruled that
under the Omnibus Election Code, the burden to show that he or she has a written authority to possess a
firearm is on the accused.162

We find that the prosecution was able to establish all the requisites for violation of the Gun Ban. The
firearms were found inside petitioner's bag. Petitioner did not present any valid authorization to carry the
firearms outside his residence during the period designated by the Commission on Elections. He was
carrying the firearms in the Cebu Domestic Port, which was a public place.

However, petitioner raised the following circumstances in his defense: (1) that he was a frequent traveler
and was, thus, knowledgeable about the security measures at the terminal; (2) that he left his bag with a
porter for a certain amount of time; and (3) that he voluntarily put his bag on the x-ray machine for
voluntary inspection. All these circumstances were left uncontested by the prosecution.

This court is now asked to determine whether these circumstances are sufficient to raise reasonable doubt
on petitioner's guilt.

When petitioner claimed that someone planted the illegal firearms in his bag, the burden of evidence to
prove this allegation shifted to him. The shift in the burden of evidence does not equate to the reversal of
the presumption of innocence. In People v. Villanueva,163 this court discussed the difference between burden
of proof and burden of evidence, and when the burden of evidence shifts to the accused

Indeed, in criminal cases, the prosecution bears the onus to prove beyond reasonable doubt not only the
commission of the crime but likewise to establish, with the same quantum of proof, the identity of the
person or persons responsible therefor. This burden of proof does not shift to the defense but remains in the
prosecution throughout the trial. However, when the prosecution has succeeded in discharging the burden of
proof by presenting evidence sufficient to convince the court of the truth of the allegations in the information
or has established a prima facie case against the accused, the burden of evidence shifts to the accused
making it incumbent upon him to adduce evidence in order to meet and nullify, if not to overthrow, that
prima facie case.164 (Emphasis supplied, citation omitted) cralawlawlibrary

Petitioner failed to negate the prosecution's evidence that he had animus possidendi or the intent to possess
the illegal firearms. In People v. De Gracia, this court elucidated on the concept of animus possidendi and
the importance of the intent to commit an act prohibited by law as differentiated from criminal intent. 166 The
accused was charged with the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 resulting from the coup d'etat staged in 1989 by the Reform Armed
Forces Movement - Soldiers of the Filipino People.167 This court held that the actions of the accused
established his intent to possess the illegal firearms

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to
commit the crime and intent to perpetrate the act must be distinguished. A person may not have
consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very
nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in
the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it
must still be shown that there was animus possidendi or an intent to possess on the part of the
accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which
the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the
accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a
person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of
the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be

considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential
Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty
of having intentionally possessed several firearms, explosives and ammunition without the requisite license
or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one
to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia
standing in the room and holding the several explosives marked in evidence as Exhibits D to D-4. At first,
appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of
guarding the explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof
because there was no intent on his part to possess the same, since he was merely employed as an errand
boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot
inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists
in the realm of thought is often disclosed in the range of action.It is not controverted that appellant De
Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the
service for going on absence without leave (AWOL). We do not hesitate, therefore, to believe and conclude
that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of
ammunition which were confiscated by the military from his possession. As a former soldier, it would be
absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he
cannot feign ignorance on the import of having in his possession such a large quantity of explosives and
ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor
one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an
ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place
intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly,
with the trade of firearms and ammunition.168 (Emphasis supplied, citations omitted) cralawlawlibrary

The disquisition in De Gracia on the distinction between criminal intent and intent to possess, which is
relevant to convictions for illegal possession of firearms, was reiterated in Del Rosario v. People.169 This court
ruled that "[i]n the absence of animus possidendi, the possessor of a Firearms incurs no criminal liability.”170

In this case, petitioner failed to prove that his possession of the illegal firearms seized from his bag was
“temporary, incidental, casual, or harmless possession[.]”171 As put by the trial court, petitioner’s claim that
anyone could have planted the firearms in his bag while it was unattended is flimsy. 172 There are dire
consequences in accepting this claim at face value, particularly that no one will be caught and convicted of
illegal possession of firearms.

Courts must also weigh the accused’s claim against the totality of the evidence presented by the
prosecution. This includes determination of: (1) the motive of whoever allegedly planted the illegal
firearms(s); (2) whether there was opportunity to plant the illegal firearms(s); and (3) reasonableness of
the situation creating the opportunity.

Petitioner merely claims that someone must have planted the firearms when he left his bag with the porter.
He did not identify who this person could have been and he did not state any motive for this person to plant
the firearms in his possession, even if there was indeed an opportunity to plant the firearms.

However, this court is mindful that, owing to the nature of his work, petitioner was a frequent traveler who
is well-versed with port security measure. We cannot accept that an average reasonable person aware of
travel security measures would leave his belongings with a stranger for a relatively long period of time. Also,
records show that petitioner had only (1) bag. There was no evidence to show that a robust young man like
petitioner would have been need of the porter’s services. The defense did not identify nor present this porter
with whom petitioner left his bag.

VIII

The trial court was correct when it dismissed Criminal Case No. CBU-80084 for violation of Republic Act no.
8294, otherwise known as illegal possession of firearms. Section 1 of Republic Act No. 8294 provides

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as
follows

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty
of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000)
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part
of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition

Provided, That no other crime was committed. (Emphasis supplied) cralawlawlibrary

Agote v. Judge Lorenzo173 already settled the question of whether there can be a "separate offense of illegal
possession of firearms and ammunition if there is another crime committed[.]" 174 In that case, the petitioner
was charged with both illegal possession of firearms and violation of the Gun Ban under Commission on
Elections Resolution No. 2826.175 This court acquitted petitioner in the case for illegal possession of firearms
since he simultaneously violated the Gun Ban.176 This court also held that the unlicensed firearm need not be
actually used in the course of committing the other crime for the application of Section 1 of Republic Act No.
8294.177

Similarly, Madrigal v. People178 applied the ruling in Agote and held that Section 1 of Republic Act No. 8294
is express in its terms that a person may not be convicted for illegal possession of firearms if another crime
was committed.179

IX

We note that the trial court imposed the penalty of imprisonment for a period of one (1) year and to suffer
disqualification to hold public office and deprivation of the right to suffrage. Under Section 264 of Batas
Pambansa Blg. 881, persons found guilty of an election offense "shall be punished with imprisonment of not
less than one year but not more than six years and shall not be subject to probation." 180 The Indeterminate
Sentence Law applies to offenses punished by both the Revised Penal Code and special laws. 181

The penalty to be imposed is a matter of law that courts must follow. The trial court should have provided
minimum and maximum terms for petitioner's penalty of imprisonment as required by the Indeterminate
Sentence Law.182 Accordingly, we modify the penalty imposed by the trial court. Based on the facts, we
deem it reasonable that petitioner be penalized with imprisonment of one (1) year as minimum to two (2)
years as maximum.183

The records are unclear whether petitioner is currently detained by the state or is out on bail. Petitioner's
detention is relevant in determining whether he has already served more than the penalty imposed upon
him by the trial court as modified by this court, or whether he is qualified to the credit of his preventive
imprisonment with his service of sentence.

Article 29184 of the Revised Penal Code states

ART. 29. Period of preventive imprisonment deducted from term of imprisonment. - Offenders or accused
who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing after being informed of the effects thereof and with the
assistance of counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in
the following cases

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in the service of his
sentence with four-fifths of the time during which he has undergone preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty (30)
years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he
shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on
appeal, if the same is under review. Computation of preventive imprisonment for purposes of immediate
release under this paragraph shall be the actual period of detention with good conduct time allowance:
Provided, however, That if the accused is absent without justifiable cause at any stage of the trial, the court
may motu proprio order the rearrest of the accused: Provided, finally, That recidivists, habitual delinquents,
escapees and persons charged with heinous crimes are excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced is lestierro [sic], he shall be released after thirty
(30) days of preventive imprisonment. cralawlawlibrary

In case credit of preventive imprisonment is due, petitioner must first signify his agreement to the
conditions set forth in Article 29 of the Revised Penal Code. 185 If petitioner has already served more than the
penalty imposed upon him by the trial court, then his immediate release from custody is in order unless
detained for some other lawful cause.186

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated September 8, 2012 and the
Resolution dated August 23, 2013 in CA-GR CEB CR No. 01606 are AFFIRMED with MODIFICATIONS.
Petitioner Erwin Libo-On Dela Cruz is sentenced to imprisonment of one (1) year as minimum to two (2)
years as maximum in accordance with the Indeterminate Sentence Law. The period of his preventive
imprisonment shall be credited in his favor if he has given his written conformity to abide by the disciplinary
rules imposed upon convicted prisoners in accordance with Article 29 of the Revised Penal Code, as
amended, and if he is not out on bail.

SO ORDERED.
G.R. No. 185128 January 30, 2012
(Formerly UDK No. 13980)

RUBEN DEL CASTILLO @ BOY CASTILLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for Review on Certiorari under Rule 45 of Ruben del
1

Castillo assailing the Decision dated July 31, 2006 and Resolution dated December 13, 2007 of the
2 3

Court of Appeals (CA) in CA-G.R. CR No. 27819, which affirmed the Decision dated March 14, 2003
4

of the Regional Trial Court (RTC), Branch 12, Cebu, in Criminal Case No. CBU-46291, finding
petitioner guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act (R.A.)
6425.

The facts, as culled from the records, are the following:

Pursuant to a confidential information that petitioner was engaged in selling shabu, police officers
headed by SPO3 Bienvenido Masnayon, after conducting surveillance and test-buy operation at the
house of petitioner, secured a search warrant from the RTC and around 3 o'clock in the afternoon of
September 13, 1997, the same police operatives went to Gil Tudtud St., Mabolo, Cebu City to serve
the search warrant to petitioner.

Upon arrival, somebody shouted "raid," which prompted them to immediately disembark from the
jeep they were riding and went directly to petitioner's house and cordoned it. The structure of the
petitioner's residence is a two-storey house and the petitioner was staying in the second floor. When
they went upstairs, they met petitioner's wife and informed her that they will implement the search
warrant. But before they can search the area, SPO3 Masnayon claimed that he saw petitioner run
towards a small structure, a nipa hut, in front of his house. Masnayon chased him but to no avail,
because he and his men were not familiar with the entrances and exits of the place.

They all went back to the residence of the petitioner and closely guarded the place where the subject
ran for cover. SPO3 Masnayon requested his men to get a barangay tanod and a few minutes
thereafter, his men returned with two barangay tanods.

In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of petitioner named
Dolly del Castillo, searched the house of petitioner including the nipa hut where the petitioner
allegedly ran for cover. His men who searched the residence of the petitioner found nothing, but one
of the barangay tanods was able to confiscate from the nipa hut several articles, including four (4)
plastic packs containing white crystalline substance. Consequently, the articles that were confiscated
were sent to the PNP Crime Laboratory for examination. The contents of the four (4) heat- sealed
transparent plastic packs were subjected to laboratory examination, the result of which proved
positive for the presence of methamphetamine hydrochloride, or shabu.

Thus, an Information was filed before the RTC against petitioner, charging him with violation of
Section 16, Article III of R.A. 6425, as amended. The Information reads:
5

That on or about the 13th day of September 1997, at about 3:00 p.m. in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then
and there have in his possession and control four (4) packs of white crystalline powder, having a
total weight of 0.31 gram, locally known as "shabu," all containing methamphetamine hydrochloride,
a regulated drug, without license or prescription from any competent authority.

CONTRARY TO LAW. 6

During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty. Subsequently,
7

trial on the merits ensued.

To prove the earlier mentioned incident, the prosecution presented the testimonies of SPO3
Bienvenido Masnayon, PO2 Milo Arriola, and Forensic Analyst, Police Inspector Mutchit Salinas.

The defense, on the other hand, presented the testimonies of petitioner, Jesusa del Castillo, Dalisay
del Castillo and Herbert Aclan, which can be summarized as follows:

On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing the electrical
wirings and airconditioning units of the Four Seasons Canteen and Beauty Parlor at Wacky Bldg.,
Cabancalan, Cebu. He was able to finish his job around 6 o'clock in the evening, but he was
engaged by the owner of the establishment in a conversation. He was able to go home around 8:30-
9 o'clock in the evening. It was then that he learned from his wife that police operatives searched his
house and found nothing. According to him, the small structure, 20 meters away from his house
where they found the confiscated items, was owned by his older brother and was used as a storage
place by his father.

After trial, the RTC found petitioner guilty beyond reasonable of the charge against him in the
Information. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, this Court finds the accused Ruben del Castillo "alyas Boy
Castillo," GUILTY of violating Section 16, Article III, Republic Act No. 6425, as amended. There being
no mitigating nor aggravating circumstances proven before this Court, and applying the
Indeterminate Sentence Law, he is sentenced to suffer the penalty of Six (6) Months and One (1)
Day as Minimum and Four (4) Years and Two (2) Months as Maximum of Prision Correccional.

The four (4) small plastic packets of white crystalline substance having a total weight of 0.31 gram,
positive for the presence of methamphetamine hydrochloride, are ordered confiscated and shall be
destroyed in accordance with the law.

SO ORDERED. 8
Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the decision of the RTC,
thus:

WHEREFORE, the challenged Decision is AFFIRMED in toto and the appeal is DISMISSED, with
costs against accused-appellant.

SO ORDERED. 9

After the motion for reconsideration of petitioner was denied by the CA, petitioner filed with this Court
the present petition for certiorari under Rule 45 of the Rules of Court with the following arguments
raised:

1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE PROVISIONS OF

THE CONSTITUTION, THE RULES OF COURT AND ESTABLISHED
JURISPRUDENCE VIS-A-VIS VALIDITY OF SEARCH WARRANT NO. 570-9-1197-24;

2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ALLEGEDLY FOUND ON THE FLOOR OF THE NIPA HUT OR
STRUCTURE ARE ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT ONLY
BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT WAS USED BY THE
PETITIONER OR THAT THE PETITIONER RAN TO IT FOR COVER WHEN THE
SEARCHING TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO, PRESUMING THAT THE
SAID NIPA HUT OR STRUCTURE WAS INDEED USED BY THE PETITIONER AND THE
FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER WERE FOUND THEREAT. THE
SUBJECT FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER ARE FRUITS OF THE
POISONOUS TREE; and

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ELEMENT OF

"POSSESSION" AS AGAINST THE PETITIONER, AS IT WAS IN VIOLATION OF THE
ESTABLISHED JURISPRUDENCE ON THE MATTER. HAD THE SAID COURT PROPERLY
APPLIED THE ELEMENT IN QUESTION, IT COULD HAVE BEEN ASSAYED THAT THE
SAME HAD NOT BEEN PROVEN. 10

The Office of the Solicitor General (OSG), in its Comment dated February 10, 2009, enumerated the
following counter-arguments:

SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge Priscilla S. Agana of Branch
24, Regional Trial Court of Cebu City is valid.

II

The four (4) packs of shabu seized inside the shop of petitioner are admissible in evidence against
him.

III

The Court of Appeals did not err in finding him guilty of illegal possession of prohibited drugs. 11
Petitioner insists that there was no probable cause to issue the search warrant, considering that
SPO1 Reynaldo Matillano, the police officer who applied for it, had no personal knowledge of the
alleged illegal sale of drugs during a test-buy operation conducted prior to the application of the
same search warrant. The OSG, however, maintains that the petitioner, aside from failing to file the
necessary motion to quash the search warrant pursuant to Section 14, Rule 127 of the Revised
Rules on Criminal Procedure, did not introduce clear and convincing evidence to show that
Masnayon was conscious of the falsity of his assertion or representation.

Anent the second argument, petitioner asserts that the nipa hut located about 20 meters away from
his house is no longer within the "permissible area" that may be searched by the police officers due
to the distance and that the search warrant did not include the same nipa hut as one of the places to
be searched. The OSG, on the other hand, argues that the constitutional guaranty against
unreasonable searches and seizure is applicable only against government authorities and not to
private individuals such as the barangay tanod who found the folded paper containing packs of
shabu inside the nipa hut.

As to the third argument raised, petitioner claims that the CA erred in finding him guilty beyond
reasonable doubt of illegal possession of prohibited drugs, because he could not be presumed to be
in possession of the same just because they were found inside the nipa hut. Nevertheless, the OSG
dismissed the argument of the petitioner, stating that, when prohibited and regulated drugs are found
in a house or other building belonging to and occupied by a particular person, the presumption
arises that such person is in possession of such drugs in violation of law, and the fact of finding the
same is sufficient to convict.

This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such
probable cause must be determined personally by the judge; (3) the judge must examine, in writing
and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the
applicant and the witnesses testify on the facts personally known to them; and (5) the warrant
specifically describes the place to be searched and the things to be seized. According to petitioner,
12

there was no probable cause. Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection with the offense are in the place
sought to be searched. A finding of probable cause needs only to rest on evidence showing that,
13

more likely than not, a crime has been committed and that it was committed by the accused.
Probable cause demands more than bare suspicion; it requires less than evidence which would
justify conviction. The judge, in determining probable cause, is to consider the totality of the
14

circumstances made known to him and not by a fixed and rigid formula, and must employ a flexible,
15

totality of the circumstances standard. The existence depends to a large degree upon the finding or
16

opinion of the judge conducting the examination. This Court, therefore, is in no position to disturb the
factual findings of the judge which led to the issuance of the search warrant. A magistrate's
determination of probable cause for the issuance of a search warrant is paid great deference by a
reviewing court, as long as there was substantial basis for that determination. Substantial basis
17

means that the questions of the examining judge brought out such facts and circumstances as would
lead a reasonably discreet and prudent man to believe that an offense has been committed, and the
objects in connection with the offense sought to be seized are in the place sought to be searched. A18

review of the records shows that in the present case, a substantial basis exists.

With regard to the second argument of petitioner, it must be remembered that the warrant issued
must particularly describe the place to be searched and persons or things to be seized in order for it
to be valid. A designation or description that points out the place to be searched to the exclusion of
all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional
requirement of definiteness. In the present case, Search Warrant No. 570-9-1197-24 specifically
19 20

designates or describes the residence of the petitioner as the place to be searched. Incidentally, the
items were seized by a barangay tanod in a nipa hut, 20 meters away from the residence of the
petitioner. The confiscated items, having been found in a place other than the one described in the
search warrant, can be considered as fruits of an invalid warrantless search, the presentation of
which as an evidence is a violation of petitioner's constitutional guaranty against unreasonable
searches and seizure. The OSG argues that, assuming that the items seized were found in another
place not designated in the search warrant, the same items should still be admissible as evidence
because the one who discovered them was a barangay tanod who is a private individual, the
constitutional guaranty against unreasonable searches and seizure being applicable only against
government authorities. The contention is devoid of merit.

It was testified to during trial by the police officers who effected the search warrant that they asked
the assistance of the barangay tanods, thus, in the testimony of SPO3 Masnayon:

Fiscal Centino:

Q For how long did the chase take place?

A Just a very few moments.

Q After that, what did you [do] when you were not able to reach him?

A I watched his shop and then I requested my men to get a barangay tanod.

Q Were you able to get a barangay tanod?

A Yes.

Q Can you tell us what is the name of the barangay tanod?

A Nelson Gonzalado.

Q For point of clarification, how many barangay tanod [did] your driver get?

A Two.

Q What happened after that?

A We searched the house, but we found negative.

Q Who proceeded to the second floor of the house?

A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.

Q What about you, where were you?

A I [was] watching his shop and I was with Matillano.

Q What about the barangay tanod?

A Together with Milo and Pogoso.

Q When the search at the second floor of the house yielded negative what did you do?

A They went downstairs because I was suspicious of his shop because he ran from his shop,
so we searched his shop.

Q Who were with you when you searched the shop?

A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Castillo named Dolly del
Castillo.

Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, Barangay Tanod Nilo
Gonzalado and the elder sister of Ruben del Castillo were together in the shop?

A Yes.

Q What happened at the shop?

A One of the barangay tanods was able to pick up white folded paper.

Q What [were] the contents of that white folded paper?

A A plastic pack containing white crystalline.

Q Was that the only item?

A There are others like the foil, scissor.

Q Were you present when those persons found those tin foil and others inside the electric shop?

A Yes.21

The fact that no items were seized in the residence of petitioner and that the items that were actually
seized were found in another structure by a barangay tanod, was corroborated by PO2 Arriola, thus:

FISCAL:

Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still recall what took place?

A We cordoned the area.

Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.

Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the presence of Ruben del Castillo's wife.

Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.

Q What about Ruben del Castillo, was she around when [you] conducted the search?

A No. Ruben was not in the house. But our team leader, team mate Bienvenido Masnayon saw that
Ruben ran away from his adjacent electronic shop near his house, in front of his house.

Q Did you find anything during the search in the house of Ruben del Castillo?

A After our search in the house, we did not see anything. The house was clean.

Q What did you do afterwards, if any?

A We left (sic) out of the house and proceeded to his electronic shop.

Q Do you know the reason why you proceeded to his electronic shop?

A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run from that store and
furthermore the door was open.

Q How far is the electronic shop from the house of Ruben del Castillo?

A More or less, 5 to 6 meters in front of his house.

xxxx

Q So, who entered inside the electronic shop?

A The one who first entered the electronic shop is our team leader Bienvenido Masnayon.

Q You mentioned that Masnayon entered first. Do you mean to say that there were other persons or
other person that followed after Masnayon?

A Then we followed suit.

Q All of your police officers and the barangay tanod followed suit?

A I led Otadoy and the barangay tanod.

Q What about you?

A I also followed suit.

Q And did anything happen inside the shop of Ruben del Castillo?
A It was the barangay tanod who saw the folded paper and I saw him open the folded paper
which contained four shabu deck.

Q How far were you when you saw the folded paper and the tanod open the folded paper?

A We were side by side because the shop was very small. 22

SPO1 Pogoso also testified on the same matter, thus:

FISCAL CENTINO:

Q And where did you conduct the search, Mr. Witness?

A At his residence, the two-storey house.

Q Among the three policemen, who were with you in conducting the search at the residence of the
accused?

A I, Bienvenido Masnayon.

Q And what transpired after you searched the house of Ruben del Castillo?

A Negative, no shabu.

Q And what happened afterwards, if any?

A We went downstairs and proceeded to the small house.

Q Can you please describe to this Honorable Court, what was that small house which you
proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.

Q And who among the team went inside?

A PO2 Milo Areola and the Barangay Tanod. 23

Having been established that the assistance of the barangay tanods was sought by the police
authorities who effected the searched warrant, the same barangay tanods therefore acted as agents
of persons in authority. Article 152 of the Revised Penal Code defines persons in authority and
agents of persons in authority as:

x x x any person directly vested with jurisdiction, whether as an individual or as a member of some
court or governmental corporation, board or commission, shall be deemed a person in authority. A
barangay captain and a barangay chairman shall also be deemed a person in authority.

A person who, by direct provision of law or by election or by appointment by competent authority,

is charged with the maintenance of public order and the protection and security of life and
property, such as barrio councilman, barrio policeman and barangay leader, and any person
who comes to the aid of persons in authority, shall be deemed an agent of a person in
authority.

The Local Government Code also contains a provision which describes the function of a barangay
tanod as an agent of persons in authority. Section 388 of the Local Government Code reads:

SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay,
sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall
be deemed as persons in authority in their jurisdictions, while other barangay officials and
members who may be designated by law or ordinance and charged with the maintenance of
public order, protection and security of life and property, or the maintenance of a desirable
and balanced environment, and any barangay member who comes to the aid of persons in
authority, shall be deemed agents of persons in authority.

By virtue of the above provisions, the police officers, as well as the barangay tanods were acting as
agents of a person in authority during the conduct of the search. Thus, the search conducted was
unreasonable and the confiscated items are inadmissible in evidence. Assuming ex gratia
argumenti that the barangay tanod who found the confiscated items is considered a private
individual, thus, making the same items admissible in evidence, petitioner's third argument that the
prosecution failed to establish constructive possession of the regulated drugs seized, would still be
meritorious.

Appellate courts will generally not disturb the factual findings of the trial court since the latter has the
unique opportunity to weigh conflicting testimonies, having heard the witnesses themselves and
observed their deportment and manner of testifying, unless attended with arbitrariness or plain
24

disregard of pertinent facts or circumstances, the factual findings are accorded the highest degree of
respect on appeal as in the present case.
25

It must be put into emphasis that this present case is about the violation of Section 16 of R.A. 6425.
In every prosecution for the illegal possession of shabu, the following essential elements must be
established: (a) the accused is found in possession of a regulated drug; (b) the person is not
authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said
drug is a regulated drug. 26

In People v. Tira, this Court explained the concept of possession of regulated drugs, to wit:
27

This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession, but also constructive possession.
Actual possession exists when the drug is in the immediate physical possession or control of the
accused. On the other hand, constructive possession exists when the drug is under the dominion
and control of the accused or when he has the right to exercise dominion and control over the place
where it is found. Exclusive possession or control is not necessary. The accused cannot avoid
conviction if his right to exercise control and dominion over the place where the contraband is
located, is shared with another.28

While it is not necessary that the property to be searched or seized should be owned by the person
against whom the search warrant is issued, there must be sufficient showing that the property is
under appellant’s control or possession. The CA, in its Decision, referred to the possession of
29

regulated drugs by the petitioner as a constructive one. Constructive possession exists when the
drug is under the dominion and control of the accused or when he has the right to exercise dominion
and control over the place where it is found. The records are void of any evidence to show that
30

petitioner owns the nipa hut in question nor was it established that he used the said structure as a
shop. The RTC, as well as the CA, merely presumed that petitioner used the said structure due to
the presence of electrical materials, the petitioner being an electrician by profession. The CA, in its
Decision, noted a resolution by the investigating prosecutor, thus:

x x x As admitted by respondent's wife, her husband is an electrician by occupation. As such,

conclusion could be arrived at that the structure, which housed the electrical equipments is actually
used by the respondent. Being the case, he has control of the things found in said structure. 31

In addition, the testimonies of the witnesses for the prosecution do not also provide proof as to the
ownership of the structure where the seized articles were found. During their direct testimonies, they
just said, without stating their basis, that the same structure was the shop of petitioner. During the
32

direct testimony of SPO1 Pogoso, he even outrightly concluded that the electrical shop/nipa hut was
owned by petitioner, thus:

FISCAL CENTINO:

Q Can you please describe to this Honorable Court, what was that small house which you
proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut. 33

However, during cross-examination, SPO3 Masnayon admitted that there was an electrical shop but
denied what he said in his earlier testimony that it was owned by petitioner, thus:

ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an electrical shop, is that correct?

A He came out of an electrical shop. I did not say that he owns the shop.

Q Now, this shop is within a structure?

A Yes.

Q How big is the structure?

A It is quite a big structure, because at the other side is a mahjong den and at the other side is a
structure rented by a couple. 34

The prosecution must prove that the petitioner had knowledge of the existence and presence of the
drugs in the place under his control and dominion and the character of the drugs. With the
35

prosecution's failure to prove that the nipa hut was under petitioner's control and dominion, there
casts a reasonable doubt as to his guilt. In considering a criminal case, it is critical to start with the
law's own starting perspective on the status of the accused - in all criminal prosecutions, he is
presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt. Proof 36

beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would
convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence. 37
1âwphi1

WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G. R. No. 27819,
which affirmed the Decision dated March 14, 2003 of the Regional Trial Court, Branch 12, Cebu, in
Criminal Case No. CBU-46291 is hereby REVERSED and SET ASIDE. Petitioner Ruben del Castillo
is ACQUITTED on reasonable doubt.

SO ORDERED.

Katz vs. us Petitioner was convicted under an indictment charging him with
transmitting wagering information by telephone across state lines in violation
of 18 U.S.C. § 1084. Evidence of petitioner's end of the conversations,
overheard by FBI agents who had attached an electronic listening and
recording device to the outside of the telephone booth from which the calls
were made, was introduced at the trial. The Court of Appeals affirmed the
conviction, finding that there was no Fourth Amendment violation, since
there was "no physical entrance into the area occupied by" petitioner.
Held:
1. The Government's eavesdropping activities violated the privacy upon
which petitioner justifiably relied while using the telephone booth, and thus
constituted a "search and seizure" within the meaning of the Fourth
Amendment. Pp. 350-353.
(a) The Fourth Amendment governs not only the seizure of tangible items,
but extends as well to the recording of oral statements. Silverman v. United
States, 365 U.S. 505, 511. P. 353.
(b) Because the Fourth Amendment protects people, rather than places, its
reach cannot turn on the presence or absence of a physical intrusion into
any given enclosure. The "trespass" doctrine of Olmstead v. United
States, 277 U.S. 438, and Goldman v. United States, 316 U.S. 129, is no
longer controlling. Pp. 351, 353.
2. Although the surveillance in this case may have been so narrowly
circumscribed that it could constitutionally have been authorized in advance,
it was not in fact conducted pursuant to the warrant procedure which is a
constitutional precondition of such electronic surveillance. Pp. 354-359.
369 F.2d 130, reversed.[p348]

TOP

Opinion
STEWART, J., Opinion of the Court
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of
California under an eight-count indictment charging him with transmitting
wagering information by telephone from Los Angeles to Miami and Boston, in
violation of a federal statute.[n1] At trial, the Government was permitted, over
the petitioner's objection, to introduce evidence of the petitioner's end of
telephone conversations, overheard by FBI agents who had attached an
electronic listening and recording device to the outside of the public
telephone booth from which he had placed his calls. In affirming his
conviction, the Court of Appeals rejected the contention that the recordings
had been obtained in violation of the Fourth Amendment,[p349] because
"[t]here was no physical entrance into the area occupied by [the
petitioner]."[n2] We granted certiorari in order to consider the constitutional
questions thus presented.[n3]
The petitioner has phrased those questions as follows:
A. Whether a public telephone booth is a constitutionally protected area
so that evidence obtained by attaching an electronic listening recording
device to the top of such a booth is obtained in violation of the right to
privacy of the user of the booth.[p350]
B. Whether physical penetration of a constitutionally protected area is
necessary before a search and seizure can be said to be violative of the
Fourth Amendment to the United States Constitution.
We decline to adopt this formulation of the issues. In the first place, the
correct solution of Fourth Amendment problems is not necessarily promoted
by incantation of the phrase "constitutionally protected area." Secondly, the
Fourth Amendment cannot be translated into a general constitutional "right
to privacy." That Amendment protects individual privacy against certain
kinds of governmental intrusion, but its protections go further, and often
have nothing to do with privacy at all.[n4] Other provisions of the Constitution
protect personal privacy from other forms of governmental invasion. [n5] But
the protection of a person's general right to privacy -- his right to be let
alone by other people[n6] -- is, like the[p351] protection of his property and
of his very life, left largely to the law of the individual States. [n7]
Because of the misleading way the issues have been formulated, the parties
have attached great significance to the characterization of the telephone
booth from which the petitioner placed his calls. The petitioner has
strenuously argued that the booth was a "constitutionally protected area."
The Government has maintained with equal vigor that it was not. [n8] But this
effort to decide whether or not a given "area," viewed in the abstract, is
"constitutionally protected" deflects attention from the problem presented by
this case.[n9] For the Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection. See Lewis v. United
States,385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But
what he seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.[p352] See Rios v. United
States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.
The Government stresses the fact that the telephone booth from which the
petitioner made his calls was constructed partly of glass, so that he was as
visible after he entered it as he would have been if he had remained outside.
But what he sought to exclude when he entered the booth was not the
intruding eye -- it was the uninvited ear. He did not shed his right to do so
simply because he made his calls from a place where he might be seen. No
less than an individual in a business office,[n10] in a friend's apartment,[n11] or in
a taxicab,[n12] a person in a telephone booth may rely upon the protection of
the Fourth Amendment. One who occupies it, shuts the door behind him,
and pays the toll that permits him to place a call is surely entitled to assume
that the words he utters into the mouthpiece will not be broadcast to the
world. To read the Constitution more narrowly is to ignore the vital role that
the public telephone has come to play in private communication.
The Government contends, however, that the activities of its agents in this
case should not be tested by Fourth Amendment requirements, for the
surveillance technique they employed involved no physical penetration of the
telephone booth from which the petitioner placed his calls. It is true that the
absence of such penetration was at one time thought to foreclose further
Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457,
464, 466; Goldman v. United States, 316 U.S. 129, 134-136, for that
Amendment was thought to limit only searches and seizures of
tangible[p353] property.[n13] But "[t]he premise that property interests
control the right of the Government to search and seize has been
discredited." Warden v. Hayden, 387 U.S. 294, 304. Thus, although a closely
divided Court supposed in Olmstead that surveillance without any trespass
and without the seizure of any material object fell outside the ambit of the
Constitution, we have since departed from the narrow view on which that
decision rested. Indeed, we have expressly held that the Fourth Amendment
governs not only the seizure of tangible items, but extends as well to the
recording of oral statements, overheard without any "technical trespass
under . . . local property law." Silverman v. United States, 365 U.S. 505,
511. Once this much is acknowledged, and once it is recognized that the
Fourth Amendment protects people -- and not simply "areas" -- against
unreasonable searches and seizures, it becomes clear that the reach of that
Amendment cannot turn upon the presence or absence of a physical
intrusion into any given enclosure.
We conclude that the underpinnings of Olmstead and Goldman have been so
eroded by our subsequent decisions that the "trespass" doctrine there
enunciated can no longer be regarded as controlling. The Government's
activities in electronically listening to and recording the petitioner's words
violated the privacy upon which he justifiably relied while using the
telephone booth, and thus constituted a "search and seizure" within the
meaning of the Fourth Amendment. The fact that the electronic device
employed to achieve that end did not happen to penetrate the wall of the
booth can have no constitutional significance.[p354]
The question remaining for decision, then, is whether the search and seizure
conducted in this case complied with constitutional standards. In that
regard, the Government's position is that its agents acted in an entirely
defensible manner: they did not begin their electronic surveillance until
investigation of the petitioner's activities had established a strong probability
that he was using the telephone in question to transmit gambling
information to persons in other States, in violation of federal law. Moreover,
the surveillance was limited, both in scope and in duration, to the specific
purpose of establishing the contents of the petitioner's unlawful telephonic
communications. The agents confined their surveillance to the brief periods
during which he used the telephone booth,[n14] and they took great care to
overhear only the conversations of the petitioner himself. [n15]
Accepting this account of the Government's actions as accurate, it is clear
that this surveillance was so narrowly circumscribed that a duly authorized
magistrate, properly notified of the need for such investigation, specifically
informed of the basis on which it was to proceed, and clearly apprised of the
precise intrusion it would entail, could constitutionally have authorized, with
appropriate safeguards, the very limited search and seizure that the
Government asserts, in fact, took place. Only last Term we sustained the
validity of[p355] such an authorization, holding that, under sufficiently
"precise and discriminate circumstances," a federal court may empower
government agents to employ a concealed electronic device "for the narrow
and particularized purpose of ascertaining the truth of the . . . allegations" of
a "detailed factual affidavit alleging the commission of a specific criminal
offense." Osborn v. United States, 385 U.S. 323, 329-330. Discussing that
holding, the Court in Berger v. New York, 388 U.S. 41, said that "the order
authorizing the use of the electronic device" in Osborn "afforded similar
protections to those . . . of conventional warrants authorizing the seizure of
tangible evidence." Through those protections, "no greater invasion of
privacy was permitted than was necessary under the circumstances." Id. at
57.[n16] Here, too, a similar[p356] judicial order could have accommodated
"the legitimate needs of law enforcement"[n17] by authorizing the carefully
limited use of electronic surveillance.
The Government urges that, because its agents relied upon the decisions
in Olmstead and Goldman, and because they did no more here than they
might properly have done with prior judicial sanction, we should
retroactively validate their conduct. That we cannot do. It is apparent that
the agents in this case acted with restraint. Yet the inescapable fact is that
this restraint was imposed by the agents themselves, not by a judicial
officer. They were not required, before commencing the search, to present
their estimate of probable cause for detached scrutiny by a neutral
magistrate. They were not compelled, during the conduct of the search
itself, to observe precise limits established in advance by a specific court
order. Nor were they directed, after the search had been completed, to
notify the authorizing magistrate in detail of all that had been seized. In the
absence of such safeguards, this Court has never sustained a search upon
the sole ground that officers reasonably expected to find evidence of a
particular crime and voluntarily confined their activities to the least
intrusive[p357] means consistent with that end. Searches conducted
without warrants have been held unlawful "notwithstanding facts
unquestionably showing probable cause," Agnello v. United States, 269 U.S.
20, 33, for the Constitution requires "that the deliberate, impartial judgment
of a judicial officer . . . be interposed between the citizen and the
police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482. "Over and
again, this Court has emphasized that the mandate of the [Fourth]
Amendment requires adherence to judicial processes," United States v.
Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment [n18] -- subject only to a few
specifically established and well delineated exceptions. [n19]
It is difficult to imagine how any of those exceptions could ever apply to the
sort of search and seizure involved in this case. Even electronic surveillance
substantially contemporaneous with an individual's arrest could hardly be
deemed an "incident" of that arrest.[n20][p358] Nor could the use of
electronic surveillance without prior authorization be justified on grounds of
"hot pursuit."[n21] And, of course, the very nature of electronic surveillance
precludes its use pursuant to the suspect's consent.[n22]
The Government does not question these basic principles. Rather, it urges
the creation of a new exception to cover this case. [n23] It argues that
surveillance of a telephone booth should be exempted from the usual
requirement of advance authorization by a magistrate upon a showing of
probable cause. We cannot agree. Omission of such authorization
bypasses the safeguards provided by an objective predetermination of
probable cause, and substitutes instead the far less reliable procedure of
an after-the-event justification for the . . . search, too likely to be subtly
influenced by the familiar shortcomings of hindsight judgment.
Beck v. Ohio, 379 U.S. 89, 96. And bypassing a neutral predetermination of
the scope of a search leaves individuals secure from Fourth
Amendment[p359] violations "only in the discretion of the police." Id. at 97.
These considerations do not vanish when the search in question is
transferred from the setting of a home, an office, or a hotel room to that of a
telephone booth. Wherever a man may be, he is entitled to know that he will
remain free from unreasonable searches and seizures. The government
agents here ignored "the procedure of antecedent justification . . . that is
central to the Fourth Amendment,"[n24] a procedure that we hold to be a
constitutional precondition of the kind of electronic surveillance involved in
this case. Because the surveillance here failed to meet that condition, and
because it led to the petitioner's conviction, the judgment must be reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this
case.
1. 18 U.S.C. § 1084. That statute provides in pertinent part:
(a) Whoever being engaged in the business of betting or wagering
knowingly uses a wire communication facility for the transmission in
interstate or foreign commerce of bets or wagers or information assisting
in the placing of bets or wagers on any sporting event or contest, or for
 the transmission of a wire communication which entitles the recipient to
receive money or credit as a result of bets or wagers, or for information
assisting in the placing of bets or wagers, shall be fined not more than
$10,000 or imprisoned not more than two years, or both.
(b) Nothing in this section shall be construed to prevent the transmission
in interstate or foreign commerce of information for use in news
reporting of sporting events or contests, or for the transmission of
information assisting in the placing of bets or wagers on a sporting event
or contest from a State where betting on that sporting event or contest
is legal into a State in which such betting is legal.
2. 369 F.2d 130, 134
3. 386 U.S. 954. The petition for certiorari also challenged the validity of a warrant
authorizing the search of the petitioner's premises. In light of our disposition of this
case, we do not reach that issue.
We find no merit in the petitioner's further suggestion that his indictment
must be dismissed. After his conviction was affirmed by the Court of
Appeals, he testified before a federal grand jury concerning the charges
involved here. Because he was compelled to testify pursuant to a grant of
immunity, 48 Stat. 1096, as amended, 47 U.S.C. § 409(l), it is clear that the
fruit of his testimony cannot be used against him in any future trial. But the
petitioner asks for more. He contends that. his conviction must be vacated
and the charges against him dismissed lest he be "subjected to [a]
penalty . . . on account of [a] . . . matter . . . concerning which he [was]
compelled . . . to testify. . . ." 47 U.S.C. § 409(l). Frank v. United
States, 347 F.2d 486. We disagree. In relevant part, § 409(l) substantially
repeats the language of the Compulsory Testimony Act of 1893, 27 Stat.
443, 49 U.S.C. § 46 which was Congress' response to this Court's statement
that an immunity statute can supplant the Fifth Amendment privilege against
self-incrimination only if it affords adequate protection from future
prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585-586.
The statutory provision here involved was designed to provide such
protection, see Brown v. United States, 359 U.S. 41, 45-46, not to confer
immunity from punishment pursuant to a prior prosecution and adjudication
of guilt. Cf. Regina v. United States, 364 U.S. 507, 513-514.
4.
The average man would very likely not have his feelings soothed any
more by having his property seized openly than by having it seized
privately and by stealth. . . . And a person can be just as much, if not
more, irritated, annoyed and injured by an unceremonious public arrest
by a policeman as he is by a seizure in the privacy of his office or home.
Griswold v. Connecticut, 381 U.S. 479, 509 (dissenting opinion of MR.
JUSTICE BLACK).
5. The First Amendment, for example, imposes limitations upon governmental
abridgment of "freedom to associate and privacy in one's associations." NAACP v.
Alabama, 357 U.S. 449, 462. The Third Amendment's prohibition against the
unconsented peacetime quartering of soldiers protects another aspect of privacy
from governmental intrusion. To some extent, the Fifth Amendment too "reflects
the Constitution's concern for . . . ‘. . . the right of each individual "to a private
enclave where he may lead a private life."'" Tehan v. Shott, 382 U.S. 406, 416.
Virtually every governmental action interferes with personal privacy to some
degree. The question in each case is whether that interference violates a command
of the United States Constitution.
6. See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev.193 (1890).
7. See, e.g., Time, Inc. v. Hill, 385 U.S. 374. Cf. Breard v. Alexandria, 341 U.S.
622; Kovacs v. Cooper, 336 U.S. 77.
8. In support of their respective claims, the parties have compiled competing lists
of "protected areas" for our consideration. It appears to be common ground that a
private home is such an area, Weeks v. United States, 232 U.S. 383, but that an
open field is not. Hester v. United States, 265 U.S. 57. Defending the inclusion of a
telephone booth in his list the petitioner cites United States v. Stone, 232 F.Supp.
396, and United States v. Madison, 32 L.W. 2243 (D.C. Ct.Gen.Sess.). Urging that
the telephone booth should be excluded, the Government finds support in United
States v. Borgese, 235 F.Supp. 286.
9. It is true that this Court has occasionally described its conclusions in terms of
"constitutionally protected areas," see, e.g., Silverman v. United States, 365 U.S.
505, 510, 512; Lopez v. United States, 373 U.S. 427, 438-439; Berger v. New
York, 388 U.S. 41, 57, 59, but we have never suggested that this concept can
serve as a talismanic solution to every Fourth Amendment problem.
10. Silverthorne Lumber Co. v. United States, 251 U.S. 385.
11. Jones v. United States, 362 U.S. 257.
12. Rios v United States, 364 U.S. 253.
13. See Olmstead v. United States, 277 U.S. 438, 464-466. We do not deal in this
case with the law of detention or arrest under the Fourth Amendment.
14. Based upon their previous visual observations of the petitioner, the agents
correctly predicted that he would use the telephone booth for several minutes at
approximately the same time each morning. The petitioner was subjected to
electronic surveillance only during this predetermined period. Six recordings,
averaging some three minutes each, were obtained and admitted in evidence. They
preserved the petitioners end of conversations concerning the placing of bets and
the receipt of wagering information.
15. On the single occasion when the statements of another person were
inadvertently intercepted, the agents refrained from listening to them.
16. Although the protections afforded the petitioner in Osborn were "similar . . . to
those . . . of conventional warrants," they were not identical. A conventional
warrant ordinarily serves to notify the suspect of an intended search. But if Osborn
had been told in advance that federal officers intended to record his conversations,
the point of making such recordings would obviously have been lost; the evidence
in question could not have been obtained. In omitting any requirement of advance
notice, the federal court that authorized electronic surveillance in Osborn simply
recognized, as has this Court, that officers need not announce their purpose before
conducting an otherwise authorized search if such an announcement would provoke
the escape of the suspect or the destruction of critical evidence. See Ker v.
California, 374 U.S. 23, 37-41.
Although some have thought that this "exception to the notice requirement
where exigent circumstances are present," id. at 39, should be deemed
inapplicable where police enter a home before its occupants are aware that
officers are present, id. at 55-58 (opinion of MR. JUSTICE BRENNAN), the
reasons for such a limitation have no bearing here. However true it may be
that "[i]nnocent citizens should not suffer the shock, fright or
embarrassment attendant upon an unannounced police intrusion," id. at 57,
and that "the requirement of awareness . . . serves to minimize the hazards
of the officers' dangerous calling," id. at 57-58, these considerations are not
relevant to the problems presented by judicially authorized electronic
surveillance.
Nor do the Federal Rules of Criminal Procedure impose an inflexible
requirement of prior notice.Rule 41(d) does require federal officers to serve
upon the person searched a copy of the warrant and a receipt describing the
material obtained, but it does not invariably require that this be done before
the search takes place. Nordelli v. United States, 24 F.2d 665, 666-667.
Thus, the fact that the petitioner in Osborn was unaware that his words
were being electronically transcribed did not prevent this Court from
sustaining his conviction, and did not prevent the Court in Berger from
reaching the conclusion that the use of the recording device sanctioned
in Osborn was entirely lawful. 388 U.S. 41, 57.
17. Lopez v. United States, 373 U.S. 427, 464 (dissenting opinion of MR. JUSTICE
BRENNAN).
18. See, e.g., Jones v. United States, 357 U.S. 493, 497-499; Rios v. United
States, 364 U.S. 253, 261; Chapman v. United States, 365 U.S. 610, 613-
615; Stoner v. California, 376 U.S. 483, 486-487.
19. See, e.g., Carroll v. United States, 267 U.S. 132, 153, 156; McDonald v. United
States, 335 U.S. 451, 454-456; Brinegar v. United States, 338 U.S. 160, 174-
177; Cooper v. California, 386 U.S. 58; Warden v. Hayden, 387 U.S. 294, 298-300.
20. In Agnello v. United States, 269 U.S. 20, 30, the Court stated:
 The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the place
where the arrest is made in order to find and seize things connected
with the crime as its fruits or as the means by which it was committed,
as well as weapons and other things to effect an escape from custody, is
not to be doubted.
Whatever one's view of "the longstanding practice of searching for other
proofs of guilt within the control of the accused found upon arrest," United
States v. Rabinowitz, 339 U.S. 56, 61; cf. id. at 71-79 (dissenting opinion of
Mr. Justice Frankfurter), the concept of an "incidental" search cannot readily
be extended to include surreptitious surveillance of an individual either
immediately before, or immediately after, his arrest.
21. Although
[t]he Fourth Amendment does not require police officers to delay in the
course of an investigation if to do so would gravely endanger their lives
or the lives of others,
Warden v. Hayden, 387 U.S. 294, 298-299, there seems little likelihood that
electronic surveillance would be a realistic possibility in a situation so
fraught with urgency.
22. A search to which an individual consents meets Fourth Amendment
requirements, Zap v. United States, 328 U.S. 624, but, of course, "the usefulness
of electronic surveillance depends on lack of notice to the suspect." Lopez v. United
States,373 U.S. 427, 463 (dissenting opinion of MR. JUSTICE BRENNAN).
23. Whether safeguards other than prior authorization by a magistrate would
satisfy the Fourth Amendment in a situation involving the national security is a
question not presented by this case.
24. See Osborn v. United States, 385 U.S. 323, 330.

SECOND DIVISION

G.R. No. 200370, June 07, 2017

MARIO VERIDIANO Y SAPI, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.:
Through this Petition for Review on Certiorari,1 Mario Veridiano y Sapi (Veridiano) assails the Decision2dated
November 18, 2011 and Resolution3 dated January 25, 2012 of the Court of Appeals in CA-G.R. CR No.
33588, which affirmed his conviction for violation of Article II, Section 11 of Republic Act No. 9165. 4

In an Information filed before the Regional Trial Court of San Pablo City, Laguna, 5 Veridiano was charged
with the crime of illegal possession of dangerous drugs. The Information read:

That on or about January 15, 2008, in the Municipality of Nagcarlan, Province of Laguna and within the
jurisdiction of this Honorable Court, the above-named accused, not being permitted or authorized by law,
did then and there willfully, unlawfully and feloniously have in his possession, control and custody one (1)
small heat-sealed transparent plastic sachet containing 2.72 grams of dried marijuana leaves, a dangerous
drug.

CONTRARY TO LAW.6
On October 9, 2008, Veridiano was arraigned. He pleaded not guilty to the offense charged. Trial on the
merits ensued.7

During trial, the prosecution presented PO1 Guillermo Cabello (PO1 Cabello) and PO1 Daniel Solano (PO1
Solano) to testify.8

According to the prosecution, at about 7:20 a.m. of January 15, 2008, a concerned citizen called a certain
PO3 Esteves, police radio operator of the Nagcarlan Police Station, informing him that a certain alias "Baho,"
who was later identified as Veridiano, was on the way to San Pablo City to obtain illegal drugs. 9

PO3 Esteves immediately relayed the information to PO1 Cabello and PO2 Alvin Vergara (PO2 Vergara) who
were both on duty.10 Chief of Police June Urquia instructed PO1 Cabello and PO2 Vergara to set up a
checkpoint at Barangay Taytay, Nagcarlan, Laguna.11

The police officers at the checkpoint personally knew Veridiano. They allowed some vehicles to pass through
after checking that he was not on board. 12 At around 10:00 a.m., they chanced upon Veridiano inside a
passenger jeepney coming from San Pablo, Laguna.13 They flagged down the jeepney and asked the
passengers to disembark.14 The police officers instructed the passengers to raise their t-shirts to check for
possible concealed weapons and to remove the contents of their pockets. 15

The police officers recovered from Veridiano "a tea bag containing what appeared to be marijuana." 16PO1
Cabello confiscated the tea bag and marked it with his initials. 17 Veridiano was arrested and apprised of his
constitutional rights.18 He was then brought to the police station.19

At the police station, PO1 Cabello turned over the seized tea bag to PO1 Solano, who also placed his
initials.20 PO1 Solano then made a laboratory examination request, which he personally brought with the
seized tea bag to the Philippine National Police Crime Laboratory. 21 The contents of the tea bag tested
positive for marijuana.22

For his defense, Veridiano testified that he went to the fiesta in San Pablo City on January 15, 2008. 23After
participating in the festivities, he decided to go home and took a passenger jeepney bound for
Nagcarlan.24 At around 10:00 a.m., the jeepney passed a police checkpoint in Barangay Taytay,
Nagcarlan.25 Veridiano noticed that the jeepney was being followed by three (3) motorcycles, each with two
(2) passengers in civilian attire.26

When the jeepney reached Barangay Buboy, Nagcarlan, the motorcyclists flagged down the jeepney. 27Two
(2) armed men boarded the jeepney and frisked Veridiano. 28 However, they found nothing on his
person.29 Still, Veridiano was accosted and brought to the police station where he was informed that "illegal
drug was . . . found in his possession."30

In the Decision dated July 16, 2010,31 the Regional Trial Court found Veridiano guilty beyond reasonable
doubt for the crime of illegal possession of marijuana. Accordingly, he was sentenced to suffer a penalty of
imprisonment of twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum, and
to pay a fine of P300,000.00.32

Veridiano appealed the decision of the trial court asserting that "he was illegally arrested." 33 He argued that
the tea bag containing marijuana is "inadmissible in evidence [for] being the 'fruit of a poisonous
tree.'"34 Veridiano further argued that the police officers failed to comply with the rule on chain of custody. 35

On the other hand, the prosecution asserted that "[t]he legality of an arrest affects only the jurisdiction of
the court over [the person of the accused]."36 Thus, by entering his plea, Veridiano waived his right to
question any irregularity in his arrest.37 With regard to the alleged illegal warrantless search conducted by
the police officers, the prosecution argued that Veridiano's "submissive deportment at the time of the
search" indicated that he consented to the warrantless search. 38

On November 18, 2011, the Court of Appeals rendered a Decision 39 affirming the guilt of Veridiano.40

The Court of Appeals found that "Veridiano was caught in flagrante delicto" of having marijuana in his
possession.41 Assuming that he was illegally arrested, Veridiano waived his right to question any irregularity
that may have attended his arrest when he entered his plea and submitted himself to the jurisdiction of the
court.42 Furthermore, the Court of Appeals held that Veridiano consented to the warrantless search because
he did not protest when the police asked him to remove the contents of his pocket. 43

Veridiano moved for reconsideration, which was denied in the Resolution dated January 25, 2012. 44

On March 16, 2012, Veridiano filed a Petition for Review on Certiorari. 45

Petitioner argues that the tea bag containing marijuana leaves was seized in violation of his right against
unreasonable searches and seizures.46 He asserts that his arrest was illegal.47 Petitioner was merely seated
inside the jeepney at the time of his apprehension. He did not act in any manner that would give the police
officers reasonable ground to believe that he had just committed a crime or that he was committing a
crime.48 Petitioner also asserts that reliable information is insufficient to constitute probable cause that
would support a valid warrantless arrest.49

Since his arrest was illegal, petitioner argues that "the accompanying [warrantless] search was likewise
illegal."50 Hence, under Article III, Section 2,51 in relation to Article III, Section 3(2)52 of the Constitution, the
seized tea bag containing marijuana is "inadmissible in evidence [for] being the fruit of a poisonous tree." 53

Nevertheless, assuming that the seized tea bag containing marijuana is admissible in evidence, petitioner
contends that the prosecution failed to preserve its integrity. 54 The apprehending team did not strictly
comply with the rule on chain of custody under Section 21 of the Implementing Rules and Regulations of
Republic Act No. 9165.55

In a Resolution dated June 13, 2012, this Court required respondent to file a comment on the petition. 56In
the Manifestation and Motion dated August 1, 2012, 57 respondent stated that it would no longer file a
comment.

The following issues are for this Court's resolution:

First, whether there was a valid warrantless arrest;

Second, whether there was a valid warrantless search against petitioner; and

Lastly, whether there is enough evidence to sustain petitioner's conviction for illegal possession of
dangerous drugs.

The Petition is granted.

The invalidity of an arrest leads to several consequences among which are: (a) the failure to acquire
jurisdiction over the person of an accused; (b) criminal liability of law enforcers for illegal arrest; and (c) any
search incident to the arrest becomes invalid thus rendering the evidence acquired as constitutionally
inadmissible.

Lack of jurisdiction over the person of an accused as a result of an invalid arrest must be raised through a
motion to quash before an accused enters his or her plea. Otherwise, the objection is deemed waived and an
accused is "estopped from questioning the legality of his [or her] arrest." 58
The voluntary submission of an accused to the jurisdiction of the court and his or her active participation
during trial cures any defect or irregularity that may have attended an arrest. 59 The reason for this rule is
that "the legality of an arrest affects only the jurisdiction of the court over the person of the accused." 60

Nevertheless, failure to timely object to the illegality of an arrest does not preclude an accused from
questioning the admissibility of evidence seized.61 The inadmissibility of the evidence is not affected when an
accused fails to question the court's jurisdiction over his or her person in a timely manner. Jurisdiction over
the person of an accused and the constitutional inadmissibility of evidence are separate and mutually
exclusive consequences of an illegal arrest.

As a component of the right to privacy, 62 the fundamental right against unlawful searches and seizures is
guaranteed by no less than the Constitution. Article III, Section 2 of the Constitution provides: chanRoblesvirtualLawlibrary

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized. 63
To underscore the importance of an individual's right against unlawful searches and seizures, Article III,
Section 3(2) of the Constitution considers any evidence obtained in violation of this right as inadmissible. 64

The Constitutional guarantee does not prohibit all forms of searches and seizures. 65 It is only directed
against those that are unreasonable.66 Conversely, reasonable searches and seizures fall outside the scope
of the prohibition and are not forbidden.67

In People v. Aruta,68 this Court explained that the language of the Constitution implies that "searches and
seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of
arrest."69 The requirements of a valid search warrant are laid down in Article III, Section 2 of the
Constitution and reiterated in Rule 126, Section 4 of the Rules on Criminal Procedure. 70

However, People v. Cogaed71 clarified that there are exceptional circumstances "when searches are
reasonable even when warrantless."72 The following are recognized instances of permissible warrantless
searches laid down in jurisprudence: (1) a "warrantless search incidental to a lawful arrest," 73 (2) search of
"evidence in 'plain view,'" (3) "search of a moving vehicle," (4) "consented warrantless search[es]," (5)
"customs search," (6) "stop and frisk," and (7) "exigent and emergency circumstances." 74

There is no hard and fast rule in determining when a search and seizure is reasonable. In any given
situation, "[w]hat constitutes a reasonable . . . search . . . is purely a judicial question," the resolution of
which depends upon the unique and distinct factual circumstances. 75 This may involve an inquiry into "the
purpose of the search or seizure, the presence or absence of probable cause, the manner in which the
search and seizure was made, the place or thing searched, and the character of the articles procured." 76

II

Pertinent to the resolution of this case is the determination of whether the warrantless search was incidental
to a lawful arrest. The Court of Appeals concluded that petitioner was caught in flagrante delicto of having
marijuana in his possession making the warrantless search lawful.77

This Court disagrees. Petitioner's warrantless arrest was unlawful.

A search incidental to a lawful arrest requires that there must first be a lawful arrest before a search is
made. Otherwise stated, a lawful arrest must precede the search; "the process cannot be reversed." 78For
there to be a lawful arrest, law enforcers must be armed with a valid warrant. Nevertheless, an arrest may
also be effected without a warrant.

There are three (3) grounds that will justify a warrantless arrest. Rule 113, Section 5 of the Revised Rules of
Criminal Procedure provides: chanRoblesvirt ualLawlibrary

Section 5. Arrest Without Warrant; When Lawful. — A peace officer or a private person may, without a
warrant, arrest a person: chanRoblesvirt ualLawlibrary

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
The first kind of warrantless arrest is known as an in flagrante delicto arrest. The validity of this warrantless
arrest requires compliance with the overt act test79 as explained in Cogaed: chanRoblesvirt ualLawlibrary

[F]or a warrantless arrest of in flagrante delicto to be affected, "two elements must concur: (1) the person
to be arrested must execute an overt act indicating that he [or she] has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the
view of the arresting officer."80
Failure to comply with the overt act test renders an in flagrante delicto arrest constitutionally infirm.
In Cogaed, the warrantless arrest was invalidated as an in flagrante delicto arrest because the accused did
not exhibit an overt act within the view of the police officers suggesting that he was in possession of illegal
drugs at the time he was apprehended.81

The warrantless search in People v. Racho82 was also considered unlawful.83 The police officers received
information that a man was in possession of illegal drugs and was on board a Genesis bus bound for Baler,
Aurora. The informant added that the man was "wearing a red and white striped [t]-shirt." 84 The police
officers waited for the bus along the national highway.85 When the bus arrived, Jack Racho (Racho)
disembarked and waited along the highway for a tricycle.86 Suddenly, the police officers approached him and
invited him to the police station since he was suspected of having shabu in his possession. 87 As Racho pulled
out his hands from his pocket, a white envelope fell yielding a sachet of shabu. 88

In holding that the warrantless search was invalid, this Court observed that Racho was not "committing a
crime in the presence of the police officers" at the time he was apprehended. 89 Moreover, Racho's arrest was
solely based on a tip.90 Although there are cases stating that reliable information is sufficient to justify a
warrantless search incidental to a lawful arrest, they were covered under the other exceptions to the rule on
warrantless searches.91

Rule 113, Section 5(b) of the Rules of Court pertains to a hot pursuit arrest. 92 The rule requires that an
offense has just been committed. It connotes "immediacy in point of time." 93 That a crime was in fact
committed does not automatically bring the case under this rule. 94 An arrest under Rule 113, Section 5(b) of
the Rules of Court entails a time element from the moment the crime is committed up to the point of arrest.

Law enforcers need not personally witness the commission of a crime. However, they must have personal
knowledge of facts and circumstances indicating that the person sought to be arrested committed it.

People v. Gerente95 illustrates a valid arrest under Rule 113, Section 5(b) of the Rules of Court. In Gerente,
the accused was convicted for murder and for violation of Republic Act No. 6425. 96 He assailed the
admissibility of dried marijuana leaves as evidence on the ground that they were allegedly seized from him
pursuant to a warrantless arrest.97 On appeal, the accused's conviction was affirmed.98 This Court ruled that
the warrantless arrest was justified under Rule 113, Section 5(b) of the Rules of Court. The police officers
had personal knowledge of facts and circumstances indicating that the accused killed the victim: chanRoblesvirt ualLawlibrary

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed
Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the
instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon
him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed
her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal
knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him,
they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain
a warrant, he would have fled the law as his two companions did. 99 (Emphasis supplied)
The requirement that law enforcers must have personal knowledge of facts surrounding the commission of
an offense was underscored in In Re Salibo v. Warden.100

In Re Salibo involved a petition for habeas corpus. The police officers suspected Datukan Salibo (Salibo) as
one (1) of the accused in the Maguindano Massacre.101 Salibo presented himself before the authorities to
clear his name. Despite his explanation, Salibo was apprehended and detained. 102 In granting the petition,
this Court pointed out that Salibo was not restrained under a lawful court process or order. 103Furthermore,
he was not arrested pursuant to a valid warrantless arrest:104
It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police Station to clear his
name and to prove that he is not the accused Butukan S. Malang. When petitioner Salibo was in the
presence of the police officers of Datu Hofer Police Station, he was neither committing nor attempting to
commit an offense. The police officers had no personal knowledge of any offense that he might have
committed.Petitioner Salibo was also not an escapee prisoner.105 (Emphasis supplied)
In this case, petitioner's arrest could not be justified as an in flagrante delicto arrest under Rule 113, Section
5(a) of the Rules of Court. He was not committing a crime at the checkpoint. Petitioner was merely a
passenger who did not exhibit any unusual conduct in the presence of the law enforcers that would incite
suspicion. In effecting the warrantless arrest, the police officers relied solely on the tip they received.
Reliable information alone is insufficient to support a warrantless arrest absent any overt act from the
person to be arrested indicating that a crime has just been committed, was being committed, or is about to
be committed.106

The warrantless arrest cannot likewise be justified under Rule 113, Section 5(b) of the Revised Rules of
Criminal Procedure. The law enforcers had no personal knowledge of any fact or circumstance indicating that
petitioner had just committed an offense.

A hearsay tip by itself does not justify a warrantless arrest. Law enforcers must have personal knowledge of
facts, based on their observation, that the person sought to be arrested has just committed a crime. This is
what gives rise to probable cause that would justify a warrantless search under Rule 113, Section 5(b) of
the Revised Rules of Criminal Procedure.

III

The warrantless search cannot be justified under the reasonable suspicion requirement in "stop and frisk"
searches.

A "stop and frisk" search is defined in People v. Chua107 as "the act of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s) or contraband." 108 Thus, the allowable scope of a "stop
and frisk" search is limited to a "protective search of outer clothing for weapons." 109

Although a "stop and frisk" search is a necessary law enforcement measure specifically directed towards
crime prevention, there is a need to safeguard the right of individuals against unreasonable searches and
seizures.110

Law enforcers do not have unbridled discretion in conducting "stop and frisk" searches. While probable cause
is not required, a "stop and frisk" search cannot be validated on the basis of a suspicion or hunch. 111 Law
enforcers must have a genuine reason to believe, based on their experience and the particular
circumstances of each case, that criminal activity may be afoot. 112 Reliance on one (1) suspicious activity
alone, or none at all, cannot produce a reasonable search.113

In Manalili v. Court of Appeals,114 the police officers conducted surveillance operations in Caloocan City
Cemetery, a place reportedly frequented by drug addicts. 115 They chanced upon a male person who had
"reddish eyes and [was] walking in a swaying manner."116 Suspecting that the man was high on drugs, the
police officers approached him, introduced themselves, and asked him what he was holding. 117However, the
man resisted.118 Upon further investigation, the police officers found marijuana in the man's
possession.119 This Court held that the circumstances of the case gave the police officers justifiable reason to
stop the man and investigate if he was high on drugs. 120

In People v. Solayao,121 the police officers were conducting an intelligence patrol to verify reports on the
presence of armed persons within Caibiran. 122 They met a group of drunk men, one (1) of whom was the
accused in a camouflage uniform.123 When the police officers approached, his companions fled leaving
behind the accused who was told not to run away.124 One (1) of the police officers introduced himself and
seized from the accused a firearm wrapped in dry coconut leaves.125 This Court likewise found justifiable
reason to stop and frisk the accused when "his companions fled upon seeing the government agents." 126

The "stop and frisk" searches in these two (2) cases were considered valid because the accused in both
cases exhibited overt acts that gave law enforcers genuine reason to conduct a "stop and frisk" search. In
contrast with Manalili and Solayao, the warrantless search in Cogaed127 was considered as an invalid "stop
and frisk" search because of the absence of a single suspicious circumstance that would justify a warrantless
search.
In Cogaed, the police officers received information that a certain Marvin Buya would be transporting
marijuana.128 A passenger jeepney passed through the checkpoint set up by the police officers. The driver
then disembarked and signaled that two (2) male passengers were carrying marijuana. 129 The police officers
approached the two (2) men, who were later identified as Victor Cogaed (Cogaed) and Santiago Dayao, and
inquired about the contents of their bags.130

Upon further investigation, the police officers discovered three (3) bricks of marijuana in Cogaed's bag. 131 In
holding that the "stop and frisk" search was invalid, this Court reasoned that "[t]here was not a single
suspicious circumstance" that gave the police officers genuine reason to stop the two (2) men and search
their belongings.132 Cogaed did not exhibit any overt act indicating that he was in possession of marijuana. 133

Similar to Cogaed, petitioner in this case was a mere passenger in a jeepney who did not exhibit any act
that would give police officers reasonable suspicion to believe that he had drugs in his possession.
Reasonable persons will act in a nervous manner in any check point. There was no evidence to show that
the police had basis or personal knowledge that would reasonably allow them to infer anything suspicious.

IV

Moreover, petitioner's silence or lack of resistance can hardly be considered as consent to the warrantless
search. Although the right against unreasonable searches and seizures may be surrendered through a valid
waiver, the prosecution must prove that the waiver was executed with clear and convincing
evidence.134 Consent to a warrantless search and seizure must be "unequivocal, specific, intelligently
given . . . [and unattended] by duress or coercion." 135

The validity of a consented warrantless search is determined by the totality of the circumstances. 136 This
may involve an inquiry into the environment in which the consent was given such as "the presence of
coercive police procedures."137

Mere passive conformity or silence to the warrantless search is only an implied acquiescence, which amounts
to no consent at all.138 In Cogaed, this Court observed: chanRoblesvirtualLawlibrary

Cogaed's silence or lack of aggressive objection was a natural reaction to a coercive environment brought
about by the police officer's excessive intrusion into his private space. The prosecution and the police carry
the burden of showing that the waiver of a constitutional right is one which is knowing, intelligent, and free
from any coercion. In all cases, such waivers are not to be presumed. 139
The presence of a coercive environment negates the claim that petitioner consented to the warrantless
search.

Another instance of a valid warrantless search is a search of a moving vehicle. The rules governing searches
and seizures have been liberalized when the object of a search is a vehicle for practical purposes. 140 Police
officers cannot be expected to appear before a judge and apply for a search warrant when time is of the
essence considering the efficiency of vehicles in facilitating transactions involving contraband or dangerous
articles.141 However, the inherent mobility of vehicles cannot justify all kinds of searches. 142 Law enforcers
must act on the basis of probable cause.143

A checkpoint search is a variant of a search of a moving vehicle. 144 Due to the number of cases involving
warrantless searches in checkpoints and for the guidance of law enforcers, it is imperative to discuss the
parameters by which searches in checkpoints should be conducted.

Checkpoints per se are not invalid.145 They are allowed in exceptional circumstances to protect the lives of
individuals and ensure their safety.146 They are also sanctioned in cases where the government's survival is
in danger.147 Considering that routine checkpoints intrude "on [a] motorist's right to 'free passage'" 148 to a
certain extent, they must be "conducted in a way least intrusive to motorists." 149 The extent of routine
inspections must be limited to a visual search. Routine inspections do not give law enforcers carte blanche to
perform warrantless searches.150

In Valmonte v. De Villa,151 this Court clarified that "[f]or as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said
routine checks cannot be regarded as violative of an individual's right against unreasonable
search[es]."152 Thus, a search where an "officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein" is not
unreasonable.153

However, an extensive search may be conducted on a vehicle at a checkpoint when law enforcers have
probable cause to believe that the vehicle's passengers committed a crime or when the vehicle contains
instruments of an offense.154

Thus, routinary and indiscriminate searches of moving vehicles are allowed if they are limited to a visual
search. This holds especially true when the object of the search is a public vehicle where individuals have a
reasonably reduced expectation of privacy. On the other hand, extensive searches are permissible only
when they are founded upon probable cause. Any evidence obtained will be subject to the exclusionary
principle under the Constitution.

That the object of a warrantless search is allegedly inside a moving vehicle does not justify an extensive
search absent probable cause. Moreover, law enforcers cannot act solely on the basis of confidential or
tipped information. A tip is still hearsay no matter how reliable it may be. It is not sufficient to constitute
probable cause in the absence of any other circumstance that will arouse suspicion.

Although this Court has upheld warrantless searches of moving vehicles based on tipped information, there
have been other circumstances that justified warrantless searches conducted by the authorities.

In People v. Breis,155 apart from the tipped information they received, the law enforcement agents observed
suspicious behavior on the part of the accused that gave them reasonable ground to believe that a crime
was being committed.156 The accused attempted to alight from the bus after the law enforcers introduced
themselves and inquired about the ownership of a box which the accused had in their possession. 157 In their
attempt to leave the bus, one (1) of the accused physically pushed a law enforcer out of the
way.158 Immediately alighting from a bus that had just left the terminal and leaving one's belongings behind
is unusual conduct.159

In People v. Mariacos,160 a police officer received information that a bag containing illegal drugs was about to
be transported on a passenger jeepney.161 The bag was marked with "O.K."162 On the basis of the tip, a
police officer conducted surveillance operations on board a jeepney. 163 Upon seeing the bag described to
him, he peeked inside and smelled the distinct odor of marijuana emanating from the bag. 164 The tipped
information and the police officer's personal observations gave rise to probable cause that rendered the
warrantless search valid.165

The police officers in People v. Ayangao166 and People v. Libnao167 likewise received tipped information
regarding the transport of illegal drugs. In Libnao, the police officers had probable cause to arrest the
accused based on their three (3)-month long surveillance operation in the area where the accused was
arrested.168 On the other hand, in Ayangao, the police officers noticed marijuana leaves protruding through a
hole in one (1) of the sacks carried by the accused.169

In the present case, the extensive search conducted by the police officers exceeded the allowable limits of
warrantless searches. They had no probable cause to believe that the accused violated any law except for
the tip they received. They did not observe any peculiar activity from the accused that may either arouse
their suspicion or verify the tip. Moreover, the search was flawed at its inception. The checkpoint was set up
to target the arrest of the accused.

There are different hybrids of reasonable warrantless searches. There are searches based on reasonable
suspicion as in Posadas v. Court of Appeals170 where this Court justified the warrantless search of the
accused who attempted to flee with a buri bag after the police officers identified themselves. 171

On the other hand, there are reasonable searches because of heightened security. In Dela Cruz v.
People,172 the search conducted on the accused was considered valid because it was done in accordance with
routine security measures in ports.173 This case, however, should not be construed to apply to border
searches. Border searches are not unreasonable per se;174 there is a "reasonable reduced expectation of
privacy" when travellers pass through or stop at airports or other ports of travel. 175

The warrantless search conducted by the police officers is invalid. Consequently, the tea bag containing
marijuana seized from petitioner is rendered inadmissible under the exclusionary principle in Article III,
Section 3(2) of the Constitution. There being no evidence to support his conviction, petitioner must be
acquitted.

WHEREFORE, the Decision dated July 16, 2010 of the Regional Trial Court in Criminal Case No. 16976-SP
and the Decision dated November 18, 2011 and Resolution dated January 25, 2012 of the Court of Appeals
in CA-GR. CR. No. 33588 are REVERSED and SET ASIDE. Petitioner Mario Veridiano y Sapi is
hereby ACQUITTED and is ordered immediately RELEASED from confinement unless he is being held for
some other lawful cause.

SO ORDERED.

SECOND DIVISION

G.R. No. 209330, January 11, 2016

SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN A. MARIANO,

ASSISTANT STATE PROSECUTOR VIMAR M. BARCELLANO AND ASSISTANT STATE PROSECUTOR
GERARD E. GAERLAN, Petitioners, v. MARIO JOEL T. REYES, Respondent.

DECISION

LEONEN, J.:

The Secretary of Justice has the discretion, upon motion or motu proprio, to act on any matter that may
cause a probable miscarriage of justice in the conduct of a preliminary investigation. This action may
include, but is not limited to, the conduct of a reinvestigation. Furthermore, a petition for certiorari under
Rule 65 questioning the regularity of preliminary investigation becomes moot after the trial court completes
its determination of probable cause and issues a warrant of arrest.

This Petition for Review on Certiorari assails the Decision1 dated March 19, 2013 and Resolution2 dated
September 27, 2013 of the Court of Appeals, which rendered null and void Department of Justice Order No.
7103 issued by the Secretary of Justice.4 The Department Order created a second panel of prosecutors to
conduct a reinvestigation of a murder case in view of the first panel of prosecutors' failure to admit the
complainant's additional evidence.

Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor of several radio
shows in Palawan. On January 24, 2011, at around 10:30 am, he was shot dead inside the Baguio
Wagwagan Ukay-ukay in San Pedro, Puerto Princesa City, Palawan. 5 After a brief chase with police officers,
Marlon B. Recamata was arrested. On the same day, he made an extrajudicial confession admitting that he
shot Dr. Ortega. He also implicated Rodolfo "Bumar" O. Edrad (Edrad), Dennis C. Aranas, and Armando
"Salbakotah" R. Noel, Jr.6

On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism Division of the
National Bureau of Investigation where he alleged that it was former Palawan Governor Mario Joel T. Reyes
(former Governor Reyes) who ordered the killing of Dr. Ortega. 7

On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No. 091 8 creating a
special panel of prosecutors (First Panel) to conduct preliminary investigation. The First Panel was composed
of Senior Assistant Prosecutor Edwin S. Dayog, Assistant State Prosecutor Bryan Jacinto S. Cacha, and
Assistant State Prosecutor John Benedict D. Medina.9

On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr. Ortega's wife, filed a
Supplemental Affidavit-Complaint implicating former Governor Reyes as the mastermind of her husband's
murder. Former Governor Reyes' brother, Coron Mayor Mario T. Reyes, Jr., former Marinduque Governor
Jose T. Carreon, former Provincial Administrator Atty. Romeo Seratubias, Marlon Recamata, Dennis Aranas,
Valentin Lesias, Arturo D. Regalado, Armando Noel, Rodolfo O. Edrad, and several John and Jane Does were
also implicated.10

On June 8, 2011, the First Panel concluded its preliminary investigation and issued the
Resolution11dismissing the Affidavit-Complaint.
On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-Open Preliminary Investigation, which, among
others, sought the admission of mobile phone communications between former Governor Reyes and
Edrad.12 On July 7, 2011, while the Motion to Re-Open was still pending, Dr. Inocencio-Ortega filed a Motion
for Partial Reconsideration Ad Cautelam of the Resolution dated June 8, 2011. Both Motions were denied by
the First Panel in the Resolution13 dated September 2, 2011.14

On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a new panel of
investigators (Second Panel) to conduct a reinvestigation of the case. The Second Panel was composed of
Assistant State Prosecutor Stewart Allan M. Mariano, Assistant State Prosecutor Vimar M. Barcellano, and
Assistant State Prosecutor Gerard E. Gaerlan.

Department Order No. 710 ordered the reinvestigation of the case "in the interest of service and due
process"15 to address the offer of additional evidence denied by the First Panel in its Resolution dated
September 2, 2011. The Department Order also revoked Department Order No. 091. 16

Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring former Governor
Reyes to appear before them on October 6 and 13, 2011 and to submit his counter-affidavit and supporting
evidence.17

On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition for Review (Ad
Cautelam) assailing the First Panel's Resolution dated September 2, 2011. 18

On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for Certiorari and
Prohibition with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order assailing the
creation of the Second Panel. In his Petition, he argued that the Secretary of Justice gravely abused her
discretion when she constituted a new panel. He also argued that the parties were already afforded due
process and that the evidence to be addressed by the reinvestigation was neither new nor material to the
case.19

On March 12, 2012, the Second Panel issued the Resolution finding probable cause and recommending the
filing of informations on all accused, including former Governor Reyes. 20 Branch 52 of the Regional Trial
Court of Palawan subsequently issued warrants of arrest on March 27, 2012. However, the warrants against
former Governor Reyes and his brother were ineffective since the two allegedly left the country days before
the warrants could be served.22

On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition for Review Ad
Cautelam23 assailing the Second Panel's Resolution dated March 12, 2012. .

On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for Certiorari and
Prohibition with Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order impleading
Branch 52 of the Regional Trial Court of Palawan.24

In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court could not enforce
the Second Panel's Resolution dated March 12, 2012 and proceed with the prosecution of his case since this
Resolution was void.25cralawred

On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the Decision 26 declaring
Department Order No. 710 null and void and reinstating the First Panel's Resolutions dated June 8, 2011
and September 2, 2011.

According to the Court of Appeals, the Secretary of Justice committed grave abuse of discretion when she
issued Department Order No. 710 and created the Second Panel. The Court of Appeals found that she should
have modified or reversed the Resolutions of the First Panel pursuant to the 2000 NPS Rule on
Appeal27 instead of issuing Department Order No. 710 and creating the Second Panel. It found that because
of her failure to follow the procedure in the 2000 NPS Rule on Appeal, two Petitions for Review Ad Cautelam
filed by the opposing parties were pending before her.28

The Court of Appeals also found that the Secretary of Justice's admission that the issuance of Department
Order No. 710 did not set aside the First Panel's Resolution dated June 8, 2011 and September 2, 2011
"[compounded] the already anomalous situation."29 It also stated that Department Order No. 710 did not
give the Second Panel the power to reverse, affirm, or modify the Resolutions of the First Panel; therefore,
the Second Panel did not have the authority to assess the admissibility and weight of any existing or
additional'evidence.30

The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for Reconsideration of
the Decision dated March 19, 2013. The Motion, however, was denied by the Court of Appeals in the
Resolution31 dated September 27, 2013.

In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown the alleged
miscarriage of justice sought to be prevented by the creation of the Second Panel since both parties were
given full opportunity to present their evidence before the First Panel. It also ruled that the evidence
examined by the Second Panel was not additional evidence but "forgotten evidence" 32 that was already
available before the First Panel during the conduct of the preliminary investigation. 33

Aggrieved, the Secretary of-Justice and the Second Panel filed the present Petition for Review on
Certiorari34 assailing the Decision dated March 19, 2013 and Resolution dated September 27, 2013 of the
Court of Appeals. Respondent Mario Joel T. Reyes filed his Comment 35 to the Petition in compliance with this
court's Resolution dated February 17, 2014.36 Petitioners' Reply37 to the Comment was filed on October 14,
2014 in compliance with this court's Resolution dated June 23, 2014. 38

Petitioners argue that the Secretary of Justice acted within her authority when she issued Department Order
No. 710. They argue that her issuance was a purely executive function and not a quasi-judicial function that
could be the subject of a petition for certiorari or prohibition. 39 In their submissions, they point out that
under Republic Act No. 10071 and the 2000 NPS Rule on Appeal, the Secretary of Justice has the power to
create a new panel of prosecutors to reinvestigate a case to prevent a miscarriage of justice. 40

Petitioners' position was that the First Panel "appear[ed] to have ignored the rules of preliminary
investigation"41 when it refused to receive additional evidence that would have been crucial for the
determination of the existence of probable cause.42 They assert that respondent was not deprived of due
process when the reinvestigation was ordered since he was not prevented from presenting controverting
evidence to Dr. Inocencio-Ortega's additional evidence.43 Petitioners argue that since the Information had
been filed, the disposition of the case was already within the discretion of the trial court. 44

Respondent, on the other hand, argues that the Secretary of Justice had no authority to order motu
proprio the reinvestigation of the case since Dr. Inocencio-Ortega was able to submit her alleged new
evidence to the First Panel when she filed her Motion for Partial Reconsideration. He argues that all parties
had already been given the opportunity to present their evidence before the First Panel so it was not
necessary to conduct a reinvestigation.45

Respondent argues that the Secretary of Justice's discretion to create a new panel of prosecutors was not
"unbridled"46 since the 2000 NPS Rule on Appeal requires that there be compelling circumstances for her to
be able to designate another prosecutor to conduct the reinvestigation. 47 He argues that the Second Panel's
Resolution dated March 12, 2012 was void since the Panel was created by a department order that was
beyond the Secretary of Justice's authority to issue. He further argues that the trial court did not acquire
jurisdiction over the case since the Information filed by the Second Panel was void. 48

The issues for this court's resolution are: chanRoblesvirt ualLawlibrary

First, whether the Court of Appeals erred in ruling that the Secretary of Justice committed grave abuse of
discretion when she issued Department Order No. 710, and with regard to this: chanRoblesvirtualLawlibrary

a. Whether the issuance of Department Order No. 710 was an executive function beyond the scope of
a petition for certiorari or prohibition; and

b. Whether the Secretary of Justice is authorized to create motu proprio another panel of prosecutors
in order to conduct a reinvestigation of the case.

Lastly, whether this Petition for Certiorari has already been rendered moot by the filing of the information in
court, pursuant to Crespo v. Mogul.49

I
The determination by the Department of Justice of the existence of probable cause is not a quasi-judicial
proceeding. However, the actions of the Secretary of Justice in affirming or reversing the findings of
prosecutors may still be subject to judicial review if it is tainted with grave abuse of discretion.

Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or officer exercising
judicial or quasi-judicial functions."50 A quasi-judicial function is "the action, discretion, etc., of public
administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts,
hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion
of a judicial nature."51 Otherwise stated, an administrative agency performs quasi-judicial functions if it
renders awards, determines the rights of opposing parties, or if their decisions have the same effect as the
judgment of a court.52

In a preliminary investigation, the prosecutor does not determine the guilt or innocence of an accused. The
prosecutor only determines "whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent-is probably guilty thereof, and should be held for trial." 53As
such, the prosecutor does not perform quasi-judicial functions. In Santos v. Go:54 chanroblesvirtuallawlibrary

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

Though some cases describe the public prosecutors power to conduct a preliminary investigation as quasi-
judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is an officer of
the executive department exercising powers akin to those of a court, and the similarity ends at this point. A
quasi-judicial body is as an organ of government other than a court and other than a legislature which
affects the rights of private parties through either adjudication or rule-making. A quasi-judicial agency
performs adjudicatory functions such that its awards, determine the rights of parties, and their decisions
have the same effect as judgments of a court. Such is not the case when a public prosecutor conducts a
preliminary investigation to determine probable cause to file an information against a person charged with a
criminal offense, or when the Secretary of Justice is reviewing the formers order or resolutions. 55
cralawlawlibrary
ChanRoblesVirtualawlibrary

In Spouses Dacudao v. Secretary of Justice,56 a petition for certiorari, prohibition, and mandamus was filed
against the Secretary of Justice's issuance of a department order. The assailed order directed all prosecutors
to forward all cases already filed against Celso de los Angeles of the Legacy Group to the Secretariat of the
Special Panel created by the Department of Justice.

This court dismissed the petition on the ground that petitions for certiorari and prohibition are directed only
to tribunals that exercise judicial or quasi-judicial functions. The issuance of the department order was a
purely administrative or executive function of the Secretary of Justice. While the Department of Justice may
perform functions similar to that of a court of law, it is not a quasi-judicial agency: chanRoblesvirtualLawlibrary

The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-judicial
office or agency. Its preliminary investigation of cases is not a quasi-judicial proceeding. Nor does the DOJ
exercise a quasi-judicial function when it reviews the findings of a public prosecutor on the finding of
probable cause in any case. Indeed, in Bautista v. Court of Appeals, the Supreme Court has held that a
preliminary investigation is not a quasi-judicial proceeding, stating:
. . . [t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused.
He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial,
and is often the only means of discovering the persons who may be reasonably charged with a crime and to
enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has
no purpose except that of determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be
said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the
fiscal. cralawlawlibrary
There may be some decisions of the Court that have characterized the public prosecutor's power to conduct
a preliminary investigation as quasi-judicial in nature. Still, this characterization is true only to the extent
that the public prosecutor, like a quasi-judicial body, is an officer of the executive department exercising
powers akin to those of a court of law.

But the limited similarity, between the public prosecutor and a quasi-judicial body quickly ends there. For
sure, a quasi-judicial body is an organ of government other than a court of law or a legislative office that
affects the rights of private parties through either adjudication or rule-making; it performs adjudicatory
functions, and its awards and adjudications determine the rights of the parties coming before it; its decisions
have the same effect as the judgments of a court of law. In contrast, that is not the effect whenever a public
prosecutor conducts a preliminary investigation to determine probable cause in order to file a criminal
information against a person properly charged with the offense, or whenever the Secretary of Justice
reviews the public prosecutor's orders or resolutions. 57(Emphasis supplied) cralawlawlibrary

Similarly, in Callo-Claridad v. Esteban,58 we have stated that a petition for review under Rule 43 of the Rules
of Court cannot be brought to assail the Secretary of Justice's resolution dismissing a complaint for lack of
probable cause since this is an "essentially executive function": 59 chanroblesvirtuallawlibrary

A petition for review under Rule 43 is a mode of appeal to be taken only to review the decisions, resolutions
or awards by the quasi-judicial officers, agencies or bodies, particularly those specified in Section 1 of Rule
43. In the matter before us, however, the Secretary of Justice was not an officer performing a quasi-judicial
function. In reviewing the findings of the OCP of Quezon City on the matter of probable cause, the Secretary
of Justice performed an essentially executive function to determine whether the crime alleged against the
respondents was committed, and whether there was 'probable cause to believe that the respondents were
guilty thereof.60
cralawlawlibrary
ChanRoblesVirtualawlibrary

A writ of prohibition, on the other hand, is directed against "the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions." 61 The
Department of Justice is not a court of law and its officers do not perform quasi-judicial functions. The
Secretary of Justice's review of the resolutions of prosecutors is also not a ministerial function.

An act is considered ministerial if "an officer or tribunal performs in the context of a given set of facts, in a
prescribed manner and without regard for the exercise of his or its own judgment, upon the propriety or
impropriety of the act done."62 In contrast, an act is considered discretionary "[i]f the law imposes a duty
upon a public officer, and gives him the right to decide how or when the duty shall be
performed."63Considering that "full discretionary authority has been delegated to the executive branch in the
determination of probable cause during a preliminary investigation," 64 the functions of the prosecutors and
the Secretary of Justice are not ministerial.

However, even when an administrative agency does not perform a judicial, quasi-judicial, or ministerial
function, the Constitution mandates the exercise of judicial review when there is an allegation of grave
abuse of discretion.65 In Auto Prominence Corporation v. Winterkorn:66 chanroblesvirtuallawlibrary

In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting to lack or
excess of jurisdiction in his determination of the existence of probable cause, the party seeking the writ of
certiorari must be able to establish that the Secretary of Justice exercised his executive power in an
arbitrary and despotic manner, by reason of passion or personal hostility, and the abuse of discretion must
be so patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty
enjoined or to act in contemplation of law. Grave abuse of discretion is not enough; it must amount to lack
or excess of jurisdiction. Excess of jurisdiction signifies that he had jurisdiction over the case, but (he)
transcended the same or acted without authority.67 cralawlawlibrary

Therefore, any question on whether the Secretary of Justice committed grave abuse of discretion amounting
to lack or excess of jurisdiction in affirming, reversing, or modifying the resolutions of prosecutors may be
the subject of a petition for certiorari under Rule 65 of the Rules of Court.

II

Under existing laws, rules of procedure, and jurisprudence, the Secretary of Justice is authorized to issue
Department Order No. 710.

Section 4 of Republic Act No. 1007168 outlines the powers granted by law to the Secretary of Justice. The
provision reads: chanRoblesvirtualLawlibrary

Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes
authority to act directly on any matter involving national security or a probable miscarriage of justice within
the jurisdiction of the prosecution staff, regional prosecution office, and the. provincial prosecutor or the city
prosecutor and to review, reverse, revise, modify or affirm on appeal or petition for review as the law or the
rules of the Department of Justice (DOJ) may provide, final judgments and orders of the prosecutor general,
regional prosecutors, provincial prosecutors, and city prosecutors. cralawlawlibrary

A criminal prosecution is initiated by the filing of a complaint to a prosecutor who shall then conduct a
preliminary investigation in order to determine whether there is probable cause to hold the accused for trial
in court.69 The recommendation of the investigating prosecutor on whether to dismiss the complaint or to file
the corresponding information in court is still subject to the approval of the provincial or city prosecutor or
chief state prosecutor.70

However, a party is not precluded from appealing the resolutions of the provincial or city prosecutor or chief
state prosecutor to the Secretary of Justice. Under the 2000 NPS Rule on Appeal, 71 appeals may be taken
within 15 days within receipt of the resolution by filing a verified petition for review before the Secretary of
Justice.72

In this case, the Secretary of Justice designated a panel of prosecutors to investigate on the Complaint filed
by Dr. Inocencio-Ortega. The First Panel, after conduct of the preliminary investigation, resolved to dismiss
the Complaint on the ground that the evidence was insufficient to support a finding of probable cause. Dr.
Inocencio-Ortega filed a Motion to Re-Open and a Motion for Partial Investigation, which were both denied
by the First Panel. Before Dr. Inocencio-Ortega could file a petition for review, the Secretary of Justice
issued Department Order No. 710 and constituted another panel of prosecutors to reinvestigate the case.
The question therefore is whether, under the 2000 NPS Rule on Appeal, the Secretary of Justice may, even
without a pending petition for review, motu proprio order the conduct of a reinvestigation.

The 2000 NPS Rule on Appeal requires the filing of a petition for review before the Secretary of Justice can
reverse, affirm, or modify the appealed resolution of the provincial or city prosecutor or chief state
prosecutor.73 The Secretary of Justice may also order the conduct of a reinvestigation in order to resolve the
petition for review. Under Section 11: chanRoblesvirt ualLawlibrary

SECTION 11. Reinvestigation. If the Secretary of Justice finds it necessary to reinvestigate the case, the
reinvestigation shall be held by the investigating prosecutor, unless, for compelling reasons, another
prosecutor is designated to conduct the same. cralawlawlibrary

Under Rule 112, Section 4 of the Rules of Court, however, the Secretary of Justice may motu proprioreverse
or modify resolutions of the provincial or city prosecutor or the chief state prosecutor even without a
pending petition for review. Section 4 states: chanRoblesvirtualLawlibrary

SEC. 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause
to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath
in the information that he, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
....

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary investigations conducted by
the officers of the Office of the Ombudsman. (Emphasis supplied)
cralawlawlibrary
The Secretary of Justice exercises control and supervision over prosecutors and it is within her- authority to
affirm, nullify, reverse, or modify the resolutions of her prosecutors. In Ledesma v. Court of Appeals:74 chanroblesvirtuallawlibrary

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the
Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors;
and who may thus affirm, nullify, reverse or modify their rulings.

Section 39, Chapter 8, Book IV. in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the
secretary of justice supervision and control over the Office of the .Chief Prosecutor and the Provincial and
City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38,
paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain
the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or
units[.]75 ChanRoblesVirtualawlibrary

cralawlawlibrary

Similarly, in Rural Community Bank ofGuimba v. Hon. Talavera:76 chanroblesvirtuallawlibrary

The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who may
affirm, nullify, reverse or modify their actions or opinions.' Consequently the secretary may direct them to
file either a motion to dismiss the case or an information against the accused.

In short, the secretary of justice, who has the power of supervision and control over prosecuting officers, is
the ultimate authority who decides which of the conflicting theories of the complainants and the respondents
should be believed.77 cralawlawlibrary

Section 4 of Republic Act No. 10071 also gives the Secretary of Justice the authority to directly act on any
"probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution office,
and the provincial prosecutor or the city prosecutor." Accordingly, the Secretary of Justice may step in and
order a reinvestigation even without a prior motion or petition from a party in order to prevent any probable
miscarriage of justice.

Dr. Inocencio-Ortega filed a Motion to Re-Open the preliminary investigation before the First Panel in order
to admit as evidence mobile phone conversations between Edrad and respondent and argued that these
phone conversations tend to prove that respondent was the mastermind of her husband's murder. The First
Panel, however, dismissed the Motion on the ground that it was filed out of time. The First Panel stated: chanRoblesvirtualLawlibrary

Re-opening of the preliminary investigation for the purpose of receiving additional evidence presupposes
that the case has been submitted for resolution but no resolution has been promulgated therein by the
investigating prosecutor. Since a resolution has already been promulgated by the panel of prosecutors in
this case, the motion to re-open the preliminary investigation is not proper and'has to be denied. 78 cralawlawlibrary

In the same Resolution, the First Panel denied Dr. Inocencio-Ortega's Motion for Partial Reconsideration on
the ground that "the evidence on record does not suffice to establish probable cause." 79 It was then that the
Secretary of Justice issued Department Order No. 710, which states: chanRoblesvirt ualLawlibrary

In the interest of service and due process, and to give both parties all the reasonable opportunity to present
their evidence during the preliminary investigation, a new panel is hereby created composed of the following
for the purpose of conducting a reinvestigation . . . .
....

The reinvestigation in this case is hereby ordered to address the offer of additional evidence by the
complainants, which was denied by the former panel in its Resolution of 2 September 2011 on the ground
that an earlier resolution has already been promulgated prior to the filing of the said motion, and such other
issues which may be raised before the present panel.80 (Emphasis supplied) cralawlawlibrary

In her reply-letter dated September 29, 2011 to respondent's counsel, the Secretary of Justice further
explained that: chanRoblesvirt ualLawlibrary
The order to reinvestigate was dictated by substantial justice and our desire to have a comprehensive
investigation. We do not want any stone unturned, or any evidence overlooked. As stated in D.O. No. 710,
we want to give "both parties all the reasonable opportunity to present their evidence." 81 cralawlawlibrary

Under these circumstances, it is clear that the Secretary of Justice issued Department Order No. 710
because she had reason to believe that the First Panel's refusal to admit the additional evidence may cause
a probable miscarriage of justice to the parties. The Second Panel was created not to overturn the findings
and recommendations of the First Panel but to make sure that all the evidence, including the evidence that
the First Panel refused to admit, was investigated. Therefore, the Secretary of Justice did not act in an
"arbitrary and despotic manner,'by reason of passion or personal hostility." 82

Accordingly, Dr. Inocencio-Ortega's Petition for Review before the Secretary of Justice was rendered moot
with the issuance by the Second Panel of the Resolution dated March 12, 2012 and the filing of the
Information against respondent before the trial court.

III

The filing of the information and the issuance by the trial court of the respondent's warrant of arrest has
already rendered this Petition moot.

It is settled that executive determination of probable cause is different from the judicial determination of
probable cause. In People v. Castillo and Mejia:83 chanroblesvirtuallawlibrary

There are two kinds of determination of probable cause: executive and judicial. The executive determination
of probable cause is one made during preliminary investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge
those whom he believes to have committed the crime as defined by law and thus should be held for trial.
Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case
must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor,
i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a
matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based
on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate
the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest
warrant.84 (Emphasis supplied)
cralawlawlibrary

The courts do not interfere with the prosecutor's conduct of a preliminary investigation. The prosecutor's
determination of probable cause is solely within his or her discretion. Prosecutors are given a wide latitude
of discretion to detennine whether an information should be filed in court or whether the complaint should
be dismissed.85

A preliminary investigation is "merely inquisitorial," 86 and is only conducted to aid the prosecutor in
preparing the information.87 It serves a two-fold purpose: first, to protect the innocent against wrongful
prosecutions; and second, to spare the state from using its funds and resources in useless prosecutions.
In Salonga v. Cruz-Paño:88 chanroblesvirtuallawlibrary

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and
anxiety of a public trial, and also to protect the state from useless and expensive trials. 89 cralawlawlibrary

Moreover, a preliminary investigation is merely preparatory to a trial. It is not a trial on the merits. An
accused's right to a preliminary investigation is merely statutory;' it is not a right guaranteed by the
Constitution. Hence, any alleged irregularity in an investigation's conduct does not render the information
void nor impair its validity. In Lozada v. Fernando:90 chanroblesvirtuallawlibrary

It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but
is merely preparatory thereto, its only purpose being to determine whether a crime has been committed and
whether there is probable cause to'believe the accused guilty thereof. The right to such investigation is not a
fundamental right guaranteed by the constitution. At most, it is statutory. And rights conferred upon
accused persons to participate in preliminary investigations concerning themselves depend upon the
provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of
law."91 (Citations omitted)
cralawlawlibrary

People v. Narca92 further states: chanRoblesvirt ualLawlibrary

It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights
of the parties. This is why preliminary investigation is not considered as a part of trial but merely
preparatory thereto and that the records therein shall not form part of the records of the case in court.
Parties' may submit affidavits but have no right to examine witnesses though they can propound questions
through the investigating officer. In fact, a preliminary investigation may even be conducted ex-part'e in
certain cases. Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation is only to
determine a well grounded belief if a crime was probably committed by an accused. In any case, the
invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may
have taken cognizance of the information nor impair the validity of the information or otherwise render it
defective.93 (Emphasis supplied) cralawlawlibrary

Once the information is filed in court, the court acquires jurisdiction of the case and any motion to dismiss
the case or to determine the accused's guilt or innocence rests within the sound discretion of the court. In
Crespo v. Mogul:94 chanroblesvirtuallawlibrary

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the
complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused
either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired
jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the information
in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action
against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such reinvestigation the finding and
recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that
the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court whatever disposition the fiscal may feel
should be proper in the case thereafter should be addressed for the consideration of the Court, the only
qualification is that the action of the Court must not impair the substantial rights of the accused or the right
of the People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or
a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in
the exercise of its discretion may grant the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the
directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to
handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is
a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying
the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is -done and
not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his
opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the
prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the
accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for
the People of the Philippines even under such circumstances much less should he abandon the prosecution
of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and
void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn
over the presentation of the evidence to the private prosecutor but still under his direction and control.
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition
of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and
sole judge on what to do with the case before it. The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the
Court who has the option to grant or deny the same. It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation. 95 (Emphasis supplied) cralawlawlibrary

Thus, it would be ill-advised for the Secretary of Justice to proceed with resolving respondent's Petition for
Review pending before her. It would be more prudent to refrain from entertaining the Petition considering
that the trial court already issued a warrant of arrest against respondent. 96 The issuance of the warrant
signifies that the trial court has made an independent determination of the existence of probable cause.
In Mendoza v. People:97 chanroblesvirtuallawlibrary

While it is within the trial court's discretion to make an independent assessment of the evidence on hand, it
is only for the purpose of determining whether a warrant of arrest should be issued. The judge does not act
as an appellate court' of the prosecutor and has no capacity to review the prosecutor's determination of
probable cause; rather, the judge makes a determination of probable cause independent of the prosecutor's
finding.98
cralawlawlibrary

Here, the trial court has already determined, independently of any finding or recommendation by the First
Panel or the Second Panel, that probable cause exists for the issuance of the warrant of arrest against
respondent. Probable cause has been judicially determined. Jurisdiction over the case, therefore, has
transferred to the trial court. A petition for certiorari questioning the validity of the preliminary investigation
in any other venue has been rendered moot by the issuance of the warrant of arrest and the conduct of
arraignment.

The Court of Appeals should have dismissed the Petition for Certiorari filed before them when the trial court
issued its warrant of arrest. Since the trial court has already acquired jurisdiction over the case and the
existence of probable cause has been judicially determined, a petition for certiorari questioning the conduct
of the preliminary investigation ceases to be the "plain, speedy, and adequate remedy" 99provided by law.
Since this Petition for Review is an appeal from a moot Petition for Certiorari, it must also be rendered moot.

The prudent course of action at this stage would be to proceed to trial. Respondent, however, is not without
remedies. He may still file any appropriate action before the trial court or question any alleged irregularity in
the preliminary investigation during pre-trial.

WHEREFORE, the Petition is DISMISSED for being moot. Branch 52 of the Regional Trial Court of Palawan
is DIRECTED to proceed with prosecution of Criminal Case No. 26839.

SO ORDERED. chanroblesvirtuallawlibrary

October 10, 2017

G.R. No. 229781

SENATOR LEILA M. DE LIMA, Petitioner

vs.
HON. JUANITA GUERRERO, in her capacity as Presiding Judge, Regional Trial Court of
Muntinlupa City, Branch 204, PEOPLE OF THE PHILIPPINES, P/DIR. GEN. RONALD M. DELA
ROSA, in his capacity as Chief of the Philippine National Police, PSUPT. PHILIP GIL M.
PHILIPPS, in his capacity as Director, Headquarters Support Service, SUPT. ARNEL
JAMANDRON APUD, in his capacity as Chief, PNP Custodial Service Unit, and ALL PERSONS
ACTING UNDER THEIR CONTROL, SUPERVISION, INSTRUCTION OR DIRECTION IN
RELATION TO THE ORDERS THAT MAY BE ISSUED BY THE COURT, Respondents
 DECISION

VELASCO, JR., J.:

For consideration is the Petition for Certiorari and Prohibition with Application for a Writ of
Preliminary Injunction, and Urgent Prayer for Temporary Restraining Order and Status Quo Ante
Order under Rule 65 of the Rules of Court filed by petitioner Senator Leila De Lima. In it, petitioner
1

assails the following orders and warrant issued by respondent judge Hon. Juanita Guerrero of the
Regional Trial Court (RTC) of Muntinlupa City, Branch 204, in Criminal Case No. 17-165,
entitled "People vs. Leila De Lima, et al.:" (1) the Order dated February 23, 2017 finding probable
cause for the issuance of warrant of arrest against petitioner De Lima; (2) the Warrant of
Arrest against De Lima also dated February 23, 2017; (3) the Order dated February 24, 2017
committing the petitioner to the custody of the PNP Custodial Center; and finally, (4) the supposed
omission of the respondent judge to act on petitioner's Motion to Quash, through which she
questioned the jurisdiction of the RTC.2

Antecedents

The facts are undisputed. The Senate and the House of Representatives conducted several inquiries
on the proliferation of dangerous drugs syndicated at the New Bilibid Prison (NBP), inviting inmates
who executed affidavits in support of their testimonies. These legislative inquiries led to the filing of
3

the following complaints with the Department of Justice:

a) NPS No. XVI-INV-16J-00313, entitled "Volunteers against Crime and Corruption (VACC),
represented by Dante Jimenez vs. Senator Leila M. De Lima, et al.;"

b) NPS No. XVI-INV-16J-00315, entitled "Reynaldo Esmeralda and Ruel Lasala vs. Senator
Leila De Lima, et al.;"

c) NPS No. XVI-INV-16K-00331, entitled "Jaybee Nifio Sebastian, represented by his wife
Roxanne Sebastian, vs. Senator Leila M De Lima, et al.;" and

d) NPS No. XVI-INV-16K-00336, entitled "National Bureau of Investigation (NBI) vs. Senator
Leila M. De Lima, et al. "
4

Pursuant to DOJ Department Order No. 790, the four cases were consolidated and the DOJ Panel of
Prosecutors (DOJ Panel), headed by Senior Assistant State Prosecutor Peter Ong, was directed to
5

conduct the requisite preliminary investigation.6

The DOJ Panel conducted a preliminary hearing on December 2, 2016, wherein the petitioner,
7

through her counsel, filed an Omnibus Motion to Immediately Endorse the Cases to the Office of the
Ombudsman and for the Inhibition of the Panel of Prosecutors and the Secretary of Justice
("Omnibus Motion"). In the main, the petitioner argued that the Office of the Ombudsman has the
8

exclusive authority and jurisdiction to hear the four complaints against her. Further, alleging evident
partiality on the part of the DOJ Panel, the petitioner contended that the DOJ prosecutors should
inhibit themselves and refer the complaints to the Office of the Ombudsman.

A hearing on the Omnibus Motion was conducted on December 9, 2016, wherein the complainants,
9

YACC, Reynaldo Esmeralda (Esmeralda) and Ruel Lasala (Lasala), filed a Joint
Comment/Opposition to the Omnibus Motion. 10
On December 12, 2016, petitioner, in turn, interposed a Reply to the Joint Comment/Opposition filed
by complainants VACC, Esmeralda and Lasala. In addition, petitioner submitted a Manifestation with
Motion to First Resolve Pending Incident and to Defer Further Proceedings. 11

During the hearing conducted on December 21, 2016, petitioner manifested that she has decided
not to submit her counter-affidavit citing the pendency of her two motions. The DOJ Panel, however,
12

ruled that it will not entertain belatedly filed counter-affidavits, and declared all pending incidents and
the cases as submitted for resolution. Petitioner moved for but was denied reconsideration by the
DOJ Panel. 13

On January 13, 2017, petitioner filed before the Court of Appeals a Petition for Prohibition and
Certiorari assailing the jurisdiction of the DOJ Panel over the complaints against her. The petitions,
14

docketed as CA-G.R. No. 149097 and CA-G.R. No. SP No. 149385, are currently pending with the
Special 6th Division of the appellate court. Meanwhile, in the absence of a restraining order issued
15

by the Court of Appeals, the DOJ Panel proceeded with the conduct of the preliminary
investigation and, in its Joint Resolution dated February 14, 2017, recommended the filing of
16 17

Informations against petitioner De Lima. Accordingly, on February 17, 2017, three Informations were
filed against petitioner De Lima and several co-accused before the RTC ofMuntinlupa City. One of
the Infonnations was docketed as Criminal Case No. 17-165 and raffled off to Branch 204, presided
18

by respondent judge. This Information charging petitioner for violation of Section 5 in relation to
Section (jj), Section 26(b), and Section 28 of Republic Act No. (RA) 9165, contained the following
averments:

That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines,
and within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the
Secretary of the Department of Justice, and accused Rafael Marcos Z. Rages, being then the
Officer-in-Charge of the Bureau of Corrections, by taking advantage of their public office, conspiring
and confederating with accused Ronnie P. Dayan, being then an employee of the Department of
Justice detailed to De Lima, all of them having moral ascendancy or influence over inmates in the
New Bilibid Prison, did then and there commit illegal drug trading, in the following manner: De Lima
and Ragos, with the use of their power, position, and authority, demand, solicit and extort money
from the high profile inmates in the New Bilibid Prison to support the senatorial bid of De Lima in the
May 2016 election; by reason of which, the inmates, not being lawfully authorized by law and
through the use of mobile phones and other electronic devices, did then and there willfully and
unlawfully trade and traffic dangerous drugs, and thereafter give and deliver to De Lima, through
Ragos and Dayan, the proceeds of illegal drug trading amounting to Five Million (₱5,000,000.00)
Pesos on 24 November 2012, Five Million (₱5,000,000.00) Pesos on 15 December 2012, and One
Hundred Thousand (₱100,000.00) Pesos weekly "tara" each from the high profile inmates in the
New Bilibid Prison. 19

On February 20, 2017, petitioner filed a Motion to Quash, mainly raising the following: the RTC lacks
20

jurisdiction over the offense charged against petitioner; the DOJ Panel lacks authority to file the
Information; the Information charges more than one offense; the allegations and the recitals of facts
do not allege the corpus delicti of the charge; the Information is based on testimonies of witnesses
who are not qualified to be discharged as state witnesses; and the testimonies of these witnesses
are hearsay. 21

On February 23, 2017, respondent judge issued the presently assailed Order finding probable
22

cause for the issuance of warrants of arrest against De Lima and her co-accused.
The Order stated, viz.:
After a careful evaluation of the herein Information and all the evidence presented during the
preliminary investigation conducted in this case by the Department of Justice, Manila, the Court finds
sufficient probable cause for the issuance of Warrants of Arrest against all the accused LEILA M. DE
LIMA, RAFAEL MARCOS Z. RAGOS and RONNIE P ALISOC DAYAN.

WHEREFORE, let Warrants of Arrest be issued against the abovementioned accused.

SO ORDERED. 23

Accordingly, the questioned Warrant of Arrest dated February 23, 2017 , which contained no
24

recommendation for bail, was issued against petitioner.

On February 24, 2017, the PNP Investigation and Detection Group served the Warrant of Arrest on
petitioner and the respondent judge issued the assailed February 24, 2017 Order, committing
25

petitioner to the custody of the PNP Custodial Center.

On February 27, 2017, petitioner repaired to this court via the present petition, praying for the
following reliefs:

a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017,
the Warrant of Arrest dated the same date, and the Order dated 24 February 2017 of the Regional
Trial Court - Branch 204, Muntinlupa City, in Criminal Case No. 17-165 entitled People of the
Philippines versus Leila M De Lima, et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further
proceedings until and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO)
and a writ of preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the
Order and Warrant of Arrest, both dated February 23, 201 7, thereby recalling both processes and
restoring petitioner to her liberty and freedom.
26

On March 9, 2017, the Office of the Solicitor General (OSG), on behalf of the respondents,
interposed its Comment to the petition. The OSG argued that the petition should be dismissed as
27

De Lima failed to show that she has no other plain, speedy, and adequate remedy. Further, the OSG
posited that the petitioner did not observe the hierarchy of courts and violated the rule against forum
shopping. On substantive grounds, the OSG asserted inter alia that the RTC has jurisdiction over the
offense charged against the petitioner, that the respondent judge observed the constitutional and
procedural rules, and so did not commit grave abuse of discretion, in the issuance of the assailed
orders and warrant. 28

On petitioner's motion, the Court directed the holding of oral arguments on the significant issues
raised. The Court then heard the parties in oral arguments on March 14, 21, and 28, 2017. 29

In the meantime, the OSG filed a Manifestation dated March 13, 2017, claiming that petitioner
30

falsified the juratsappearing in the: (1) Verification and Certification against Forum Shopping page of
her petition; and (2) Affidavit of Merit in support of her prayer for injunctive relief. The OSG alleged
that while the advertedjurats appeared to be notarized by a certain Atty. Maria Cecille C. Tresvalles-
Cabalo on February 24, 2017, the guest logbook in the PNP Custodial Center Unit in Camp Crame
31
for February 24, 2017 does not bear the name of Atty. Tresvalles-Cabalo. Thus, so the OSG
maintained, petitioner De Lima did not actually appear and swear before the notary public on such
date in Quezon City, contrary to the allegations in the jurats. For the OSG, the petition should
therefore be dismissed outright for the falsity committed by petitioner De Lima.

In compliance with an Order of this Court, petitioner filed the Affidavit of Atty. Maria Cecille C.
Tresvalles-Cabalo dated March 20, 2017 to shed light on the allegations of falsity
32

in petitioner'sjurats.

The parties simultaneously filed their respective Memoranda on April 17, 2017. 33

The Issues

From the pleadings and as delineated in this Court's Advisory dated March 10, 2017 and discussed
34

by the parties during the oral arguments, the issues for resolution by this Court are:

Procedural Issues:
A Whether or not petitioner is excused from compliance with the doctrine on hierarchy of courts
considering that the petition should first be filed with the Court of Appeals.

B. Whether or not the pendency of the Motion to Quash the Information before the trial court renders
the instant petition premature.

C. Whether or not petitioner, in filing the present petition, violated the rule against forum shopping
given the pendency of the Motion to Quash the Information before the Regional Trial Court of
Muntinlupa City in Criminal Case No. 17-165 and the Petition for Certiorari filed before the Court of
Appeals in C.A. G.R. SP No. 149097, assailing the preliminary investigation conducted by the DOJ
Panel.

Substantive Issues:
A. Whether the Regional Trial Court or the Sandiganbayan has the jurisdiction over the violation of
Republic Act No. 9165 averred in the assailed Information.

B. Whether or not the respondent gravely abused her discretion in finding probable cause to issue
the Warrant of Arrest against petitioner.

C. Whether or not petitioner is entitled to a Temporary Restraining Order and/or Status Quo
Ante Order in the interim until the instant petition is resolved or until the trial court rules on the
Motion to Quash.

OUR RULING

Before proceeding to a discussion on the outlined issues, We shall first confront the issue of the
alleged falsification committed by petitioner in the jurats of her Verification and Certification against
Forum Shopping and Affidavit of Merit in support of her prayer for injunctive relief.

In her Affidavit, Atty. Tresvalles-Cabalo disproves the OSG's allegation that she did not notarize the
petitioner's Verification and Certification against Forum Shopping and Affidavit of Merit in this wise:

4. On February 24, 2017 at or around nine in the morning (9:00 AM), I went to PNP, CIDG, Camp
Crame, Quezon City to notarize the Petition as discussed the previous night.
5. I met Senator De Lima when she was brought to the CIDG at Camp Crame and I was informed
that the Petition was already signed and ready for notarization.

6. I was then provided the Petition by her staff. I examined the signature of Senator De Lima and
confirmed that it was signed by her. I have known the signature of the senator given our personal
relationship. Nonetheless, I still requested from her staff a photocopy of any of her government-
issued valid Identification Cards (ID) bearing her signature. A photocopy of her passport was
presented to me. I compared the signatures on the Petition and the Passport and I was able to verify
that the Petition was in fact signed by her. Afterwards, I attached the photocopy of her Passport to
the Petition which I appended to my Notarial Report/Record.

7. Since I already know that Sen. De Lima caused the preparation of the Petition and that it was her
who signed the same, I stamped and signed the same.

8. To confirm with Senator De Lima that I have already notarized the Petition, I sought entry to the
detention facility at or around three in the afternoon (3:00 PM). x x x

xxxx

11. Since I was never cleared after hours of waiting, I was not able to talk again to Senator De Lima
to confirm the notarization of the Petition. I then decided to leave Camp Crame. 35

At first glance, it is curious that Atty. Tresvalles-Cabalo who claims to have "stamped and signed the
[Verification and Certification and Affidavit of Merit]" inside Camp Crame, presumably in De Lima's
presence, still found it necessary to, hours later, "confirm with Senator De Lima that [she had]
already notarized the Petition." Nonetheless, assuming the veracity of the allegations narrated in the
Affidavit, it is immediately clear that petitioner De Lima did not sign the Verification and Certification
against Forum Shopping and Affidavit of Merit in front of the notary public. This is contrary to
the jurats (i.e., the certifications of the notary public at the end of the instruments) signed by Atty.
Tresvalles-Cabalo that the documents were "SUBSCRIBED AND SWORN to before me."

Such clear breach of notarial protocol is highly censurable as Section 6, Rule II of the 2004 Rules
36

on Notarial Practice requires the affiant, petitioner De Lima in this case, to sign the instrument or
document in the presence of the notary, viz.:

SECTION 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through competent
evidence of identity as defined by these Rules;

(c) signs the instrument or document in the presence of the notary; and

(d) takes an oath or affirmation before the notary public as to such instrument or document.
(Emphasis and underscoring supplied.)

While there is jurisprudence to the effect that "an irregular notarization merely reduces the
evidentiary value of a document to that of a private document, which requires /roof of its due
execution and authenticity to be admissible as evidence," the same cannot be considered
37

controlling in determining compliance with the requirements of Sections 1 and 2, Rule 65 of the
Rules of Court. Both Sections 1 and 2 of Rule 65 require that the petitions for certiorari and
38

prohibition must be verified and accompanied by a "sworn certificate of non-forum shopping."

In this regard, Section 4, Rule 7 of the Rules of Civil Procedure states that "[a] pleading is verified by
an affidavit that the affiant has read the pleading and that the allegations therein are true and correct
of his personal knowledge or based on authentic records." "A pleading required to be verified which
x x x lacks a proper verification, shall be treated as an unsigned pleading." Meanwhile, Section 5,
Rule 7 of the Rules of Civil Procedure provides that "[t]he plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and,
to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such
other pending action or claim, a complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed or is pending, he shall
report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed." "Failure to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of
the case without prejudice, unless otherwise provided x x x."

In this case, when petitioner De Lima failed to sign the Verification and Certification against Forum
Shopping in the presence of the notary, she has likewise failed to properly swear under oath the
contents thereof, thereby rendering false and null the jurat and invalidating the Verification and
Certification against Forum Shopping. The significance of a proper jurat and the effect of its invalidity
was elucidated in William Go Que Construction v. Court of Appeals, where this Court held that:
39

In .this case, it is undisputed that the Verification/Certification against Forum Shopping attached to
the petition for certiorari in CA-G.R. SP No. 109427 was not accompanied with a valid
affidavit/properly certified under oath. This was because the jurat thereof was defective in that it did
not indicate the pertinent details regarding the affiants' (i.e., private respondents) competent
evidence of identities.

Under Section 6, Rule II of AM. No. 02-8-13-SC 63 dated July 6, 2004, entitled the "2004 Rules on
Notarial Practice" (2004 Rules on Notarial Practice), ajurat refers to an act in which an individual on
a single occasion:

xxxx

In Fernandez v. Villegas (Fernandez), the Court pronounced that noncompliance with the verification
requirement or a defect therein "does not necessarily render the pleading fatally defective. The court
may order its submission or correction or act on the pleading if the attending circumstances are such
that strict compliance with the Rule may be dispensed with in order that the ends of justice may be
served thereby." "Verification is deemed substantially complied with when one who has ample
knowledge to swear to the truth of the allegations in the complaint or petition signs the verification,
and when matters alleged in the petition have been made in good faith or are true and correct."
Here, there was no substantial compliance with the verification requirement as it cannot be
ascertained that any of the private respondents actually swore to the truth of the allegations in the
petition for certiorari in CA-G.R. SP No. 109427 given the lack of competent evidence of any of their
identities. Because of this, the fact that even one of the private respondents swore that the
allegations in the pleading are true and correct of his knowledge and belief is shrouded in doubt.

For the same reason, neither was there substantial compliance with the certification against forum
shopping requirement. In Fernandez, the Court explained that "non-compliance therewith or a defect
therein, unlike in verification, is generally not curable by its subsequent submission or correction
thereof, unless there is a need to relax the Rule on the ground of 'substantial compliance' or
presence of 'special circumstances or compelling reasons."' Here, the CA did not mention - nor does
there exist - any perceivable special circumstance or compelling reason which justifies the rules'
relaxation. At all events, it is uncertain if any of the private respondents certified under oath that no
similar action has been filed or is pending in another forum.

xxxx

Case law states that "[v]erification is required to secure an assurance that the allegations in the
petition have been made in good faith or are true and correct, and not merely speculative." On the
other hand, "[t]he certification against forum shopping is required based on the principle that a party-
litigant should not be allowed to pursue simultaneous remedies in different fora." The important
purposes behind these requirements cannot be simply brushed aside absent any sustainable
explanation justifying their relaxation. In this case, proper justification is especially called for in light
of the serious allegations of forgery as to the signatures of the remaining private
respondents, i.e., Lominiqui and Andales. Thus, by simply treating the insufficient submissions
before it as compliance with its Resolution dated August 13, 2009 requiring anew the submission of
a proper verification/certification against forum shopping, the CA patently and grossly ignored settled
procedural rules and, hence, gravely abused its discretion. All things considered, the proper course
of action was for it to dismiss the petition. (Emphasis and underscoring supplied.)
40

Without the presence of the notary upon the signing of the Verification and Certification against
Forum Shopping, there is no assurance that the petitioner swore under oath that the allegations in
the petition have been made in good faith or are true and correct, and not merely speculative. It must
be noted that verification is not an empty ritual or a meaningless formality. Its import must never be
sacrificed in the name of mere expedience or sheer caprice, as what apparently happened in the
41

present case. Similarly, the absence of the notary public when petitioner allegedly affixed her
signature also negates a proper attestation that forum shopping has not been committed by the filing
of the petition. Thus, the petition is, for all intents and purposes, an unsigned pleading that does not
deserve the cognizance of this Court. In Salum bides, Jr. v. Office of the Ombudsman, the Court
42 43

held thus:

The Court has distinguished the effects of non-compliance with the requirement of verification and
that of certification against forum shopping. A defective verification shall be treated as an unsigned
pleading and thus produces no legal effect, subject to the discretion of the court to allow the
deficiency to be remedied, while the failure to certifv against forum shopping shall be cause for
dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the
initiatory pleading. (Emphasis and italicization from the original.)

Notably, petitioner has not proffered any reason to justify her failure to sign the Verification and
Certification Against Forum Shopping in the presence of the notary. There is, therefore, no
justification to relax the rules and excuse the petitioner's non-compliance therewith. This Court had
reminded parties seeking the ultimate relief of certiorari to observe the rules, since nonobservance
thereof cannot be brushed aside as a "mere technicality." Procedural rules are not to be belittled or
44

simply disregarded, for these prescribed procedures ensure an orderly and speedy administration of
justice. Thus, as in William Go Que Construction, the proper course of action is to dismiss outright
45

the present petition.

Even if We set aside this procedural infirmity, the petition just the same merits denial on several
other grounds.
PETITIONER DISREGARDED THE HIERARCHY OF COURTS

Trifling with the rule on hierarchy of courts is looked upon with disfavor by this Court. It will not
46

entertain direct resort to it when relief can be obtained in the lower courts. The Court has repeatedly
47

emphasized that the rule on hierarchy of courts is an important component of the orderly
administration of justice and not imposed merely for whimsical and arbitrary reasons. In The
48

Diocese of Bacolod v. Commission on Elections, the Court explained the reason for the doctrine
49

thusly:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time for the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.

xxxx

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution. To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
"actual case" that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues that may
not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating - in
the light of new circumstances or in the light of some confusion of bench or bar - existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that
role. (Emphasis supplied.)
50

Nonetheless, there are recognized exceptions to this rule and direct resort to this Court were allowed
in some instances. These exceptions were summarized in a case of recent vintage, Aala v. Uy, as
follows:

In a fairly recent case, we summarized other well-defined exceptions to the doctrine on hierarchy of
courts. Immediate resort to this Court may be allowed when any of the following grounds are
present: (1) when genuine issues of constitutionality are raised that must be addressed immediately;
(2) when the case involves transcendental importance; (3) when the case is novel; (4) when the
constitutional issues raised are better decided by this Court; (5) when time is of the essence; (6)
when the subject of review involves acts of a constitutional organ; (7) when there is no other plain,
speedy, adequate remedy in the ordinary course of law; (8) when the petition includes questions that
may affect public welfare, public policy, or demanded by the broader interest of justice; (9) when the
order complained of was a patent nullity; and (10) when the appeal was considered as an
inappropriate remedy. 51

Unfortunately, none of these exceptions were sufficiently established in the present petition so as to
convince this court to brush aside the rules on the hierarchy of courts.

Petitioner's allegation that her case has sparked national and international interest is obviously not
covered by the exceptions to the rules on hierarchy of courts. The notoriety of a case, without more,
is not and will not be a reason for this Court's decisions. Neither will this Court be swayed to relax its
rules on the bare fact that the petitioner belongs to the minority party in the present administration. A
primary hallmark of an independent judiciary is its political neutrality. This Court is thus loath to
perceive and consider the issues before it through the warped prisms of political partisanships.

That the petitioner is a senator of the republic does not also merit a special treatment of her case.
The right to equal treatment before the law accorded to every Filipino also forbids the elevation of
petitioner's cause on account of her position and status in the government.

Further, contrary to her position, the matter presented before the Court is not of first impression.
Petitioner is not the first public official accused of violating RA 9165 nor is she the first defendant to
question the finding of probable cause for her arrest. In fact, stripped of all political complexions, the
controversy involves run-of-the mill matters that could have been resolved with ease by the lower
court had it been given a chance to do so in the first place.

In like manner, petitioner's argument that the rule on the hierarchy of court should be disregarded as
her case involves pure questions of law does not obtain. One of the grounds upon which petitioner
anchors her case is that the respondent judge erred and committed grave abuse of discretion in
finding probable cause to issue her arrest. By itself, this ground removes the case from the ambit of
cases involving pure questions of law. It is established that the issue of whether or not probable
cause exists for the issuance of warrants for the arrest of the accused is a question of fact,
determinable as it is from a review of the allegations in the Information, the Resolution of the
Investigating Prosecutor, including other documents and/ or evidence appended to the
Information. This matter, therefore, should have first been brought before the appellate court, which
52

is in the better position to review and determine factual matters.

Yet, petitioner harps on the supposed judicial efficiency and economy of abandoning the rule on the
hierarchy of courts in the present case. Indeed, the Court has considered the practical aspects of the
administration of justice in deciding to apply the exceptions rather than the rule. However, it is all the
more for these practical considerations that the Court must insist on the application of the rule and
not the exceptions in this case. As petitioner herself alleges, with the President having declared the
fight against illegal drugs and corruption as central to his platform of government, there will be a
spike of cases brought before the courts involving drugs and public officers. As it now stands, there
53

are 232,557 criminal cases involving drugs, and around 260,796 criminal cases involving other
offenses pending before the R TCs. This Court cannot thus allow a precedent allowing public
54

officers assailing the finding of probable cause for the issuance of arrest warrants to be brought
directly to this Court, bypassing the appellate court, without any compelling reason.
THE PRESENT PETITION IS PREMATURE

The prematurity of the present petition is at once betrayed in the reliefs sought by petitioner's Prayer,
which to restate for added emphasis, provides:

WHEREFORE, premises considered, and in the interest of substantial justice and fair play, Petitioner
respectfully prays the Honorable Court that judgment be rendered:

a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017,
the Warrant of Arrest dated the same date, and the Order dated 24 February 2017 of the Regional
Trial CourtBranch 204, Muntinlupa City, in Criminal Case No. 17-165 entitled People of the
Philippines versus Leila M De Lima et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further
proceedings until and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO)
and a writ of preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the
Order and Warrant of Arrest, both dated February 23, 201 7, thereby recalling both processes and
restoring petitioner to her liberty and freedom. (Emphasis supplied)
55

Under paragraph (a), petitioner asks for a writ of certiorari annulling the Order dated February 23,
2017 finding probable cause, the warrant of arrest and the Order dated February 24, 2017
committing petitioner to the custody of the PNP Custodial Center. Clearly petitioner seeks the recall
of said orders to effectuate her release from detention and restore her liberty. She did not ask for the
dismissal of the subject criminal case.

More importantly, her request for the issuance of a writ of prohibition under paragraph (b) of the
prayer "until and unless the Motion to Quash is resolved with finality," is an unmistakable admission
that the RTC has yet to rule on her Motion to Quash and the existence of the RTC's authority to rule
on the said motion. This admission against interest binds the petitioner; an admission against
interest being the best evidence that affords the greatest certainty of the facts in dispute. It is based
56

on the presumption that "no man would declare anything against himself unless such declaration is
true. " It can be presumed then that the declaration corresponds with the truth, and it is her fault if it
57

does not. 58

Moreover, petitioner under paragraphs (c) and (d) prayed for a TRO and writ of preliminary injunction
and a status quo ante order which easily reveal her real motive in filing the instant petition-to restore
to "petitioner her liberty and freedom."

Nowhere in the prayer did petitioner explicitly ask for the dismissal of Criminal Case No. 17-165.
What is clear is she merely asked the respondent judge to rule on her Motion to Quash before
issuing the warrant of arrest.

In view of the foregoing, there is no other course of action to take than to dismiss the petition on the
ground of prematurity and allow respondent Judge to rule on the Motion to Quash according to the
desire of petitioner.
This Court, in Solid Builders Inc. v. China Banking Corp., explained why a party should not pre-empt
the action of a trial court:

Even Article 1229 of the Civil Code, which SBI and MFII invoke, works against them. Under that
provision, the equitable reduction of the penalty stipulated by the parties in their contract will be
based on a finding by the court that such penalty is iniquitous or unconscionable. Here, the trial court
has not yet made a ruling as to whether the penalty agreed upon by CBC with SBI and MFII is
unconscionable. Such finding will be made by the trial court only after it has heard both parties and
weighed their respective evidence in light of all relevant circumstances. Hence, for SBI and MFII to
claim any right or benefit under that provision at this point is premature. (Emphasis supplied)
59

In State of Investment House, Inc. v. Court of Appeals, the Court likewise held that a petition
60

for certiorari can be resorted to only after the court a quo has already and actually rendered its
decision. It held, viz.:

We note, however, that the appellate court never actually ruled on whether or not petitioner's right
had prescribed. It merely declared that it was in a position to so rule and thereafter required the
parties to submit memoranda. In making such a declaration, did the CA commit grave abuse of
discretion amounting to lack of jurisdiction? It did not.

xxxx

All things considered, this petition is premature. The CA has decided nothing and whatever
petitioner's vehement objections may be (to any eventual ruling on the issue of prescription) should
be raised only after such ruling shall have actually been promulgated.

The situation evidently does not yet call for a recourse to a petition for certiorari under Rule
65. (Italicization from the original. Emphasis supplied.)
61

An analogous ruling was made by this Court in Diaz v. Nora, where it ruled in this wise:

x x x In the case of the respondent labor arbiter, he has not denied the motion for execution filed by
the petitioner. He merely did not act on the same. Neither had petitioner urged the immediate
resolution of his motion for execution by said arbiter. In the case of the respondent NLRC, it was not
even given the opportunity to pass upon the question raised by petitioner as to whether or not it has
jurisdiction over the appeal, so the records of the case can be remanded to the respondent labor
arbiter for execution of the decision.

Obviously, petitioner had a plain, speedy and adequate remedy to seek relief from public
respondents but he failed to avail himself of the same before coming to this Court. To say the least,
the petition is premature and must be struck down. (Emphasis supplied.)
62

The dissents would deny the applicability of the foregoing on the ground that these were not criminal
cases that involved a pending motion to quash. However, it should be obvious from the afore-quoted
excerpts that the nature of the cases had nothing to do with this Court's finding of prematurity in
those cases. Instead, what was stressed therein was that the lower courts had not yet made, nor
was not given the opportunity to make, a ruling before the parties came before this forum.

Indeed, the prematurity of the present petition cannot be over-emphasized considering that petitioner
is actually asking the Court to rule on some of the grounds subject of her Motion to Quash. The
Court, if it rules positively in favor of petitioner regarding the grounds of the Motion to Quash, will be
preempting the respondent Judge from doing her duty to resolve the said motion and even prejudge
the case. This is clearly outside of the ambit of orderly and expeditious rules of procedure. This,
without a doubt, causes an inevitable delay in the proceedings in the trial court, as the latter abstains
from resolving the incidents until this Court rules with finality on the instant petition.

Without such order, the present petition cannot satisfy the requirements set before this Court can
exercise its review powers. Section 5 (2)(C) of Article VIII of the 1987 Constitution explicitly requires
the existence of "final judgments and orders of lower courts" before the Court can exercise its power
to "review, revise, reverse, modify, or affirm on appeal or certiorari" in "all cases in which the
jurisdiction of any lower court is in issue," viz.:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved. (Emphasis supplied.)

In the palpable absence of a ruling on the Motion to Quash -- which puts the jurisdiction of the lower
court in issue -- there is no controversy for this Court to resolve; there is simply no final judgment or
order of the lower court to review, revise, reverse, modify, or affirm. As per the block letter provision
of the Constitution, this Court cannot exercise its jurisdiction in a vacuum nor issue a definitive ruling
on mere suppositions.

Succinctly, the present petition is immediately dismissible for this Court lacks jurisdiction to review a
non-existent court action. It can only act to protect a party from a real and actual ruling by a lower
tribunal. Surely, it is not for this Court to negate "uncertain contingent future event that may not occur
as anticipated, or indeed may not occur at all," as the lower court's feared denial of the subject
Motion to Quash. 63

The established rule is that courts of justice will take cognizance only of controversies "wherein
actual and not merely hypothetical issues are involved." The reason underlying the rule is "to
64

prevent the courts through avoidance of premature adjudication from entangling themselves in
abstract disagreements, and for us to be satisfied that the case does not present a hypothetical
injury or a claim contingent upon some event that has not and indeed may never transpire." 65
Even granting arguendo that what is invoked is the original jurisdiction of this Court under
Section 5 (1) of Article VIII, the petition nonetheless falls short of the Constitutional requirements and
of Rule 65 of the Rules of Court. In the absence of a final judgment, order, or ruling on the Motion to
Quash challenging the jurisdiction of the lower court, there is no occasion for this Court to issue the
extraordinary writ of certiorari. Without a judgment or ruling, there is nothing for this Court to declare
as having been issued without jurisdiction or in grave abuse of discretion.

Furthermore, it is a basic requirement under Rule 65 that there be "[no] other plain, speedy and
adequate remedy found in law." Thus, the failure to exhaust all other remedies, as will be later
66

discussed, before a premature resort to this Court is fatal to the petitioner's cause of action.

Petitioner even failed to move for the reconsideration of the February 23 and 24, 2017 Orders she is
currently assailing in this Petition. As this Court held in Estrada v. Office of the Ombudsman, "[a]
motion for reconsideration allows the public respondent an opportunity to correct its factual and legal
errors x x x [it] is mandatory before the filing of a petition for certiorari." The reasons proffered by
67

petitioner fail to justify her present premature recourse.

Various policies and rules have been issued to curb the tendencies of litigants to disregard, nay
violate, the rule enunciated in Section 5 of Article VIII of the Constitution to allow the Court to devote
its time and attention to matters within its jurisdiction and prevent the overcrowding of its docket.
There is no reason to consider the proceedings at bar as an exception.

PETITIONER VIOLATED THE RULE AGAINST FORUM SHOPPING

It is settled that forum shopping exists when a party repetitively avails himself of several judicial
remedies in different courts, simultaneously or successively, all substantially founded on the same
transactions and the same essential facts and circumstances, and all raising substantially the same
issues either pending in, or already resolved adversely by, some other court. It is considered an act
of malpractice as it trifles with the courts and abuses their processes. Thus, as elucidated in Luzon
68

Iron Development Group Corporation v. Bridgestone Mining and Development Corporation, forum 69

shopping warrants the immediate dismissal of the suits filed:

Forum shopping is the act of litigants who repetitively avail themselves of multiple judicial remedies
in different fora, simultaneously or successively, all substantially founded on the same transactions
and the same essential facts and circumstances; and raising substantially similar issues either
pending in or already resolved adversely by some other court; or for the purpose of increasing their
chances of obtaining a favorable decision, if not in one court, then in another. The rationale against
forum-shopping is that a party should not be allowed to pursue simultaneous remedies in two
different courts, for to do so would constitute abuse of court processes which tends to degrade the
administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion
of the heavily burdened dockets of the courts.

xxxx

What is essential in determining the existence of forum-shopping is the vexation caused the courts
and litigants by a party who asks different courts and/or administrative agencies to rule on similar or
related causes and/or grant the same or substantially similar reliefs, in the process creating the
possibility of conflicting decisions being rendered upon the same issues.

xxxx
We emphasize that the grave evil sought to be avoided by the rule against forum-shopping is the
rendition by two competent tribunals of two separate and contradictory decisions. To avoid any
confusion, this Court adheres strictly to the rules against forum shopping, and any violation of these
rules results in the dismissal of a case. The acts committed and described herein can possibly
constitute direct contempt.70

This policy echoes the last sentence of Section 5, Rule 7 of the Rules of Court, which states that "[i]f
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as
a cause for administrative sanctions."

The test to determine the existence of forum shopping is whether the elements of litis pendentia, or
whether a final judgment in one case amounts to res judicata in the other. Forum shopping therefore
exists when the following elements are present: (a) identity of parties, or at least such parties
representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed for,
the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such
that any judgment rendered in the other action will, regardless of which party is successful, amount
to res judicata in the action under consideration.71

Anent the first requisite, there is an identity of parties when the parties in both actions are the same,
or there is privity between them, or they are successors-in-interest by title subsequent to the
commencement of the action litigating for the same thing and under the same title and in the same
capacity.72

Meanwhile, the second and third requisites obtain where the same evidence necessary to sustain
the second cause of action is sufficient to authorize a recovery in the first, even if the forms or the
nature of the two (2) actions are different from each other. If the same facts or evidence would
sustain both, the two (2) actions are considered the same within the rule that the judgment in the
former is a bar to the subsequent action; otherwise, it is not.73

All these requisites are present in this case.

The presence of the first requisite is at once apparent. The petitioner is an accused in the criminal
case below, while the respondents in this case, all represented by the Solicitor General, have
substantial identity with the complainant in the criminal case still pending before the trial court.

As for the second requisite, even a cursory reading of the petition and the Motion to Quash will
reveal that the arguments and the reliefs prayed for are essentially the same. In both, petitioner
advances the RTC's supposed lack of jurisdiction over the offense, the alleged multiplicity of
offenses included in the Information; the purported lack of the corpus delicti of the charge, and,
basically, the non-existence of probable cause to indict her. And, removed of all non-essentials, she
essentially prays for the same thing in both the present petition and the Motion to Quash: the
nullification of the Information and her restoration to liberty and freedom. Thus, our ruling in Jent v.
Tullet Prebon (Philippines), Inc. does not apply in the present case as the petition at bar and the
74

motion to quash pending before the court a quo involve similar if not the same reliefs. What is more,
while Justice Caguioa highlights our pronouncement in Jent excepting an "appeal or special civil
action for certiorari" from the rule against the violation of forum shopping, the good justice overlooks
that the phrase had been used with respect to forum shopping committed
through successive actions by a "party, against whom an adverse judgment or order has [already]
been rendered in one forum." The exception with respect to an "appeal or special civil action
75

for certiorari" does not apply where the forum shopping is committed by simultaneous actions where
no judgment or order has yet been rendered by either forum. To restate for emphasis, the RTC has
yet to rule on the Motion to Quash. Thus, the present petition and the motion to quash before the R
TC are simultaneous actions that do not exempt petitions for certiorari from the rule against forum
shopping.

With the presence of the first two requisites, the third one necessarily obtains in the present case.
Should we grant the petition and declare the RTC without jurisdiction over the offense, the RTC is
bound to grant De Lima's Motion to Quash in deference to this Court's authority. In the alternative, if
the trial court rules on the Motion to Quash in the interim, the instant petition will be rendered moot
and academic.

In situations like the factual milieu of this instant petition, while nobody can restrain a party to a case
before the trial court to institute a petition for certiorari under Rule 65 of the Rules of Court, still such
petition must be rejected outright because petitions that cover simultaneous actions are anathema to
the orderly and expeditious processing and adjudication of cases.

On the ground of forum shopping alone, the petition merits immediate dismissal.

THE REGIONAL TRIAL COURT HAS JURISDICTION

Even discounting the petitioner's procedural lapses, this Court is still wont to deny the instant petition
on substantive grounds.

Petitioner argues that, based on the allegations of the Information in Criminal Case No. 17-165, the
Sandiganbayan has the jurisdiction to try and hear the case against her. She posits that the
Information charges her not with violation of RA 9165 but with Direct Bribery-a felony within the
exclusive jurisdiction of the Sandiganbayan given her rank as the former Secretary of Justice with
Salary Grade 31. For the petitioner, even assuming that the crime described in the Information is a
violation of RA 9165, the Sandiganbayan still has the exclusive jurisdiction to try the case
considering that the acts described in the Information were intimately related to her position as the
Secretary of Justice. Some justices of this Court would even adopt the petitioner's view, declaring
that the Information charged against the petitioner is Direct Bribery.

The respondents, on the other hand, maintain that the R TC has exclusive jurisdiction to try
violations of RA 9165, including the acts described in the Information against the petitioner. The
Sandiganbayan, so the respondents contend, was specifically created as an anti-graft court. It was
never conferred with the power to try drug-related cases even those committed by public officials. In
fact, respondents point out that the history of the laws enabling and governing the Sandiganbayan
will reveal that its jurisdiction was streamlined to address specific cases of graft and corruption,
plunder, and acquisition of ill-gotten wealth.

Before discussing the issue on jurisdiction over the subject matter, it is necessary to clarify the crime
with which the petitioner is being charged. For ease of reference, the Information filed with the R TC
is restated below:

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Versus
Criminal Case No. 17-165

LEILA M. DE LIMA (NPS No. XVI-INV-16J-00315 and NPS No.

XVl-INV-16K-00336) For: Violation of the
(66 Laguna de Bay corner Subic Bay Drive, Comprehensive Dangerous Drugs Act of
South Bay Village, Paraiiaque City and/or 2002,Section 5, in relation to Section 3(jj),
Room 502, GSIS Building, Financial Center, Section 26 (b), and Section 28, Republic Act
Roxas Boulevard, Pasay City), RAFAEL No. 9165 (lllegal Drug Trading)
MARCOS Z. RAGOS (c/o National Bureau of
Investigation, Taft Avenue, Manila) and
RONNIE P ALISOC DAY AN, (Barangay
Galarin, Urbiztondo, Pangasinan), Accused

x-------------------------------------x

INFORMATION

The undersigned Prosecutors, constituted as a Panel pursuant to Department Orders 706 and 790
dated October 14, 2016 and November 11, 2016, respectively, accuse LEILA M. DE LIMA, RAFAEL
MARCOS Z. RAGOS and RONNIE P ALISOC DAY AN, for violation of Section 5, in relation to
Section 3 (jj), Section 26 (b) and Section 28, Republic Act No. 9165, otherwise known as
the Comprehensive Dangerous Act of 2002, committed as follows:

That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines,
and within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the
Secretary of the Department of Justice, and accused Rafael Marcos Z. Ragos, being then the
Officer-in-Charge of the Bureau of Corrections, by taking advantage of their public office, conspiring
and confederating with accused Ronnie P. Dayan, being then the employee of the Department of
Justice detailed to De Lima, all of them having moral ascendancy or influence over inmates in the
New Bilibid Prison, did then and there commit illegal drug trading, in the following manner: De Lima
and Ragos, with the use of their power, position, and authority demand, solicit and extort money
from the high profile inmates in the New Bilibid Prison to support the Senatorial bid of De Lima in the
May 2016 election; by reason of which, the inmates, not being lawfully authorized by law and
through the use of mobile phones and other electronic devices, did then and there willfully and
unlawfully trade and traffic dangerous drugs, and thereafter give and deliver to De Lima, through
Ragos and Dayan, the proceeds of illegal drug trading amounting to Five Million (₱5,000,000.00)
Pesos on 24 November 2012, Five Million (₱5,000,000.00) Pesos on 15 December 2012, and One
Hundred Thousand (₱l00,000.00) Pesos weekly "tara" each from the high profile inmates in the New
Bilibid Prison.

CONTRARY TO LAW. 76

Notably, the designation, the prefatory statements and the accusatory portions of the Information
repeatedly provide that the petitioner is charged with "Violation of the Comprehensive Dangerous
Drugs Act of 2002, Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, Republic Act
No. 9165." From the very designation of the crime in the Information itself, it should be plain that the
crime with which the petitioner is charged is a violation of RA 9165. As this Court clarified in Quimvel
v. People, the designation of the offense in the Information is a critical element required under
77

Section 6, Rule 110 of the Rules of Court in apprising the accused of the offense being charged, viz.:
The offense charged can also be elucidated by consulting the designation of the offense as
appearing in the Information. The designation of the offense is a critical element required under Sec.
6, Rule 110 of the Rules of Court for it assists in apprising the accused of the offense being charged.
Its inclusion in the Information is imperative to avoid surprise on the accused and to afford him of the
opportunity to prepare his defense accordingly. Its import is underscored in this case where the
preamble states that the crime charged is of "Acts of Lasciviousness in relation to Section 5(b) of
R.A. No.7610." (Emphasis supplied.)
78

Further, a reading of the provisions of RA 9165 under which the petitioner is prosecuted would
convey that De Lima is being charged as a conspirator in the crime of Illegal Drug Trading. The
pertinent provisions of RA 9165 read:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

xxxx

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text
messages, e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms
or acting as a broker in any of such transactions whether for money or any other consideration in
violation of this Act.

xxxx

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos (₱500,000.00) to Ten
million pesos (₱10,000,000.00) shall be imposed upon any person, who, unless authorized by law,
shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy regardless of the
quantity and purity involved, or shall act as a broker in any of such transactions.

xxxx

SECTION 26. Attempt or Conspiracy. - Any attempt or conspiracy to commit the following unlawful
acts shall be penalized by the same penalty prescribed for the commission of the same as provided
under this Act:

xxxx

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any
dangerous drug and/or controlled precursor and essential chemical;

xxxx

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of
the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual
disqualification from any public office, if those found guilty of such unlawful acts are government
officials and employees.
While it may be argued that some facts may be taken as constitutive of some elements of Direct
Bribery under the Revised Penal Code (RPC), these facts taken together with the other allegations
in the Information portray a much bigger picture, Illegal Drug Trading. The latter crime, described by
the United Nations Office on Drugs and Crime (UNODC) as "a global illicit trade involving the
cultivation, manufacture, distribution and sale of substances," necessarily involves various
79

component crimes, not the least of which is the bribery and corruption of government officials. An
example would be reports of recent vintage regarding billions of pesos' worth of illegal drugs allowed
to enter Philippine ports without the scrutiny of Customs officials. Any money and bribery that may
have changed hands to allow the importation of the confiscated drugs are certainly but trivial
contributions in the furtherance of the transnational illegal drug trading - the offense for which the
persons involved should be penalized.

Read as a whole, and not picked apart with each word or phrase construed separately, the
Information against De Lima goes beyond an indictment for Direct Bribery under Article 210 of the
RPC. As Justice Martires articulately explained, the averments on solicitation of money in the
80

Information, which may be taken as constitutive of bribery, form "part of the description on how illegal
drug trading took place at the NBP." The averments on how petitioner asked for and received money
from the NBP inmates simply complete the links of conspiracy between her, Ragos, Dayan and the
NBP inmates in willfully and unlawfully trading dangerous drugs through the use of mobile phones
and other electronic devices under Section 5, in relation to Section 3(jj), Section 26(b), and Section
28, of RA 9165.

On this score, that it has not been alleged that petitioner actually participated in the actual trafficking
of dangerous drugs and had simply allowed the NBP inmates to do so is non sequitur given that the
allegation of conspiracymakes her liable for the acts of her co-conspirators. As this Court elucidated,
it is not indispensable for a co-conspirator to take a direct part in every act of the crime. A conspirator
need not even know of all the parts which the others have to perform, as conspiracy is the common
81

design to commit a felony; it is not participation in all the details of the execution of the
crime. As long as the accused, in one way or another, helped and cooperated in the
82

consummation of a felony, she is liable as a co-principal. As the Information provides, De Lima's

83

participation and cooperation was instrumental in the trading of dangerous drugs by the NBP
inmates. The minute details of this participation and cooperation are matters of evidence that need
not be specified in the Information but presented and threshed out during trial.

Yet, some justices remain adamant in their position that the Information fails to allege the necessary
elements of Illegal Drug Trading. Justice Carpio, in particular, would cite cases supposedly
enumerating the elements necessary for a valid Information for Illegal Drug Trading. However, it
should be noted that the subject of these cases was "Illegal Sale" of dangerous drugs -- a crime
separate and distinct from "Illegal Trading" averred in the Information against De Lima. The
elements of "Illegal Sale" will necessary differ from the elements of Illegal Trading under Section 5, in
relation to Section 3(jj), of RA 9165. The definitions of these two separate acts are reproduced below
for easy reference:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

xxxx

(ii) Sell. - Any act of giving away any dangerous drug and/or controlled precursor and essential
chemical whether for money or any other consideration.

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text
messages, e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms
or acting as a broker in any of such transactions whether for money or any other consideration in
violation of this Act.

It is obvious from the foregoing that the crime of illegal trading has been written in strokes much
broader than that for illegal sale. In fact, an illegal sale of drugs may be considered as only one of
the possible component acts of illegal trading which may be committed through two modes: (1)
illegal trafficking using electronic devices; or (2) acting as a broker in any transactions involved in the
illegal trafficking of dangerous drugs.

On this score, the crime of "illegal trafficking" embraces various other offenses punishable by RA
9165. Section 3(r) of RA 9165 provides:

(r) Illegal Trafficking. - The illegal cultivation, culture, delivery, administration, dispensation,
manufacture, sale, trading, transportation, distribution, importation, exportation and possession of
any dangerous drug and/or controlled precursor and essential chemical.

In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined as follows:

(a) Administer. - Any act of introducing any dangerous drug into the body of any person, with or
without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any
act of indispensable assistance to a person in administering a dangerous drug to himself/herself
unless administered by a duly licensed practitioner for purposes of medication.

xxxx

(d) Chemical Diversion. - The sale, distribution, supply or transport of legitimately imported, in-transit,
manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in
concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and
shall include packaging, repackaging, labeling, relabeling or concealment of such transaction
through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front
companies or mail fraud.

xxxx

(i) Cultivate or Culture. - Any act of knowingly planting, growing, raising, or permitting the planting,
growing or raising of any plant which is the source of a dangerous drug.

xxxx

(k) Deliver. - Any act of knowingly passing a dangerous drug to another, personally or otherwise, and
by any means, with or without consideration.

xxxx

(m) Dispense. - Any act of giving away, selling or distributing medicine or any dangerous drug with or
without the use of prescription.

xxxx
(u) Manufacture. - The production, preparation, compounding or processing of any dangerous drug
and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical synthesis or by a combination
of extraction and chemical synthesis, and shall include any packaging or repackaging of such
substances, design or configuration of its form, or labeling or relabeling of its container; except that
such terms do not include the preparation, compounding, packaging or labeling of a drug or other
substances by a duly authorized practitioner as an incident to his/her administration or dispensation
of such drug or substance in the course of his/her professional practice including research, teaching
and chemical analysis of dangerous drugs or such substances that are not intended for sale or for
any other purpose.

xxxx

(kk) Use. - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing,
smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system
of the body, any of the dangerous drugs.

With the complexity of the operations involved in Illegal Trading of drugs, as recognized and defined
in RA 9165, it will be quite myopic and restrictive to require the elements of Illegal Sale-a mere
component act-in the prosecution for Illegal Trading.

More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may make it impossible
to provide the details of the elements of Illegal Sale. By "using electronic devices such as, but not
limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messengers
and chat rooms," the Illegal Trading can be remotely perpetrated away from where the drugs are
actually being sold; away from the subject of the illegal sale. With the proliferation of digital
technology coupled with ride sharing and delivery services, Illegal Trading under RA 9165 can be
committed without getting one's hand on the substances or knowing and meeting the seller or buyer.
To require the elements of Illegal Sale (the identities of the buyer, seller, the object and
consideration, in Illegal Trade) would be impractical.

The same may be said of the second mode for committing Illegal Trading, or trading by "acting as a
broker" in transactions involved in Illegal Trafficking. In this instance, the accused may neither have
physical possession of the drugs nor meet the buyer and seller and yet violate RA 9165. As pointed
out by Justice Perlas-Bernabe, as early as 1916, jurisprudence has defined a broker as one who is
simply a middleman, negotiating contracts relative to property with which he has no custody, viz.:

A broker is generally defined as one who is engaged, for others, on a commission, negotiating
contracts relative to property with the custody of which he has no concern; the negotiator between
other parties, never acting in his own name, but in the name of those who employed him; he is
strictly a middleman and for some purposes the agent of both parties. (Emphasis and underscoring
84

supplied.)

In some cases, this Court even acknowledged persons as brokers even "where they actually took no
part in the negotiations, never saw the customer." For the Court, the primary occupation of a broker
85

is simply bringing "the buyer and the seller together, even if no sale is eventually made. " Hence, in
86

indictments for Illegal Trading, it is illogical to require the elements of Illegal Sale of drugs, such as
the identities of the buyer and the seller, the object and consideration. For the prosecution of Illegal
87

Trading of drugs to prosper, proof that the accused "act[ed] as a broker" or brought together the
buyer and seller of illegal drugs "using electronic devices such as, but not limited to, text messages,
e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms" is
sufficient.
The DOJ' s designation of the charge as one for Illegal Drug Trading thus holds sway. After all, the
prosecution is vested with a wide range of discretion-including the discretion of whether, what, and
whom to charge. The exercise of this discretion depends on a smorgasboard of factors, which are
88

best appreciated by the prosecutors. 89

As such, with the designation of the offense, the recital of facts in the Information, there can be no
other conclusion than that petitioner is being charged not with Direct Bribery but with violation of RA
9165.

Granting without conceding that the information contains averments which constitute the elements of
Direct Bribery or that more than one offence is charged or as ill this case, possibly bribery and
violation of RA 9165, still the prosecution has the authority to amend the information at any time
before arraignment. Since petitioner has not yet been arraigned, then the information subject of
Criminal Case No. 17-165 can still be amended pursuant to Section 14, Rule 110 of the Rules of
Court which reads:

SECTION 14. Amendment or Substitution. - A complaint or information may be amended, in form or

in substance, without leave of court, at any time before the accused enters his plea. After the plea
and during the trial, a formal amendment may only be made with leave of court and when it can be
done without causing prejudice to the rights of the accused.

Now the question that irresistibly demands an answer is whether it is the Sandiganbayan or the RTC
that has jurisdiction over the subject matter of Criminal Case No. 17-165, i.e., violation of RA 9165.

It is basic that jurisdiction over the subject matter in a criminal case is given only by law in the
manner and form prescribed by law. It is determined by the statute in force at the time of the
90

commencement of the action. Indeed, Congress has the plenary power to define, prescribe and
91

apportion the jurisdiction of various courts. It follows then that Congress may also, by law, provide
that a certain class of cases should be exclusively heard and determined by one court. Such would
be a special law that is construed as an exception to the general law on jurisdiction of courts.92

The pertinent special law governing drug-related cases is RA 9165, which updated the rules
provided in RA 6425, otherwise known as the Dangerous Drugs Act of 1972. A plain reading of RA
9165, as of RA 6425, will reveal that jurisdiction over drug-related cases is exclusively vested with
the Regional Trial Court and no other. The designation of the RTC as the court with the exclusive
jurisdiction over drug-related cases is apparent in the following provisions where it was expressly
mentioned and recognized as the only court with the authority to hear drug-related cases:

Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including
the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or
Precursors and Essential Chemicals. - x x x x

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense
and all the assets and properties of the accused either owned or held by him or in the name of some
other persons if the same shall be found to be manifestly out of proportion to his/her lawful income:

xxxx
During the pendency of the case in the Regional Trial Court, no property, or income derived
therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and
the same shall be in custodia legis and no bond shall be admitted for the release of the same.

xxxx

Section 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the
Voluntary Submission Program. - x x x

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center
may be filed by any person authorized by the Board with the Regional Trial Court of the province or
city where such person is found.

xxxx

Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment
and Rehabilitation. - If a person charged with an offense where the imposable penalty is
imprisonment of less than six (6) years and one (1) day, and is found by the prosecutor or by the
court, at any stage of the proceedings, to be a drug dependent, the prosecutor or the court as the
case may be, shall suspend all further proceedings and transmit copies of the record of the case to
the Board.

In the event the Board determines, after medical examination, that public interest requires that such
drug dependent be committed to a center for treatment and rehabilitation, it shall file a petition for
his/her commitment with the regional trial court of the province or city where he/she is being
investigated or tried: x x x

xxxx

Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing
Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of
this Act. The number of courts designated in each judicial region shall be based on the population
and the number of cases pending in their respective jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this
Act.

Notably, no other trial court was mentioned in RA 9165 as having the authority to take cognizance of
drug-related cases. Thus, in Morales v. Court of Appeals, this Court categorically named the RTC as
93

the court with jurisdiction over drug related-cases, as follows:

Applying by analogy the ruling in People v. Simon, People v. De Lara, People v.

Santos, and Ordonez v. Vinarao, the imposable penalty in this case which involves 0.4587 grams
of shabu should not exceed prision correccional. We say by analogy because these cases involved
marijuana, not methamphetamine hydrochloride (shabu). In Section 20 of RA. No. 6425, as
amended by Section 17 of RA No. 7659, the maximum quantities of marijuana and
methamphetamine hydrochloride for purposes of imposing the maximum penalties are not the same.
For the latter, if the quantity involved is 200 grams or more, the penalty of reclusion perpetua to
death and a fine ranging from ₱500,000 to PIO million shall be imposed. Accordingly, if the quantity
involved is below 200 grams, the imposable penalties should be as follows:
 xxxx

Clearly, the penalty which may be imposed for the offense charged in Criminal Case No. 96-8443
would at most be only prision correccional duration is from six (6) months and one (1) day to six (6)
years. Does it follow then that, as the petitioner insists, the RTC has no jurisdiction thereon in view of
the amendment of Section 32 of B.P. Big. 129 by R.A. No. 7691, which vested upon Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts exclusive original jurisdiction
over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the
amount of fine and regardless of other imposable accessory or other penalties? This Section 32 as
thus amended now reads:

xxxx

The exception in the opening sentence is of special significance which we cannot disregard. x xx
The aforementioned exception refers not only to Section 20 of B.P. Blg. 129 providing for the
jurisdiction of Regional Trial Courts in criminal cases, but also to other laws which specifically lodge
in Regional Trial Courts exclusive jurisdiction over specific criminal cases, e. g., (a) Article 360 of the
Revised Penal Code, as amended by R.A. Nos. 1289 and 4363 on written defamation or libel; (b)
Decree on Intellectual Property (P. D. No. 49, as amended), which vests upon Courts of First
Instance exclusive jurisdiction over the cases therein mentioned regardless of the imposable
penalty; and (c) more appropriately for the case at bar, Section 39 of RA No. 6425, as amended by
P.D. No. 44, which vests on Courts of First Instance, Circuit Criminal Courts, and the Juvenile and
Domestic Relations Courts concurrent exclusive original jurisdiction over all cases involving
violations of said Act.

xxxx

That Congress indeed did not intend to repeal these special laws vesting exclusive jurisdiction in the
Regional Trial Courts over certain cases is clearly evident from the exception provided for in the
opening sentence of Section 32 of B.P. Blg. 129, as amended by RA No. 7691. These special laws
are not, therefore, covered by the repealing clause (Section 6) of RA No. 7691.

Neither can it be successfully argued that Section 39 of RA. No. 6425, as amended by P.D. No. 44,
is no longer operative because Section 44 of B.P. Big. 129 abolished the Courts of First Instance,
Circuit Criminal Courts, and Juvenile and Domestic Relations Courts. While, indeed, Section 44
provides that these courts were to be "deemed automatically abolished" upon the declaration by the
President that the reorganization provided in B.P. Blg. 129 had been completed, this Court should
not lose sight of the fact that the Regional Trial Courts merely replaced the Courts of First Instance
as clearly borne out by the last two sentences of Section 44, to wit:

xxxx

Consequently, it is not accurate to state that the "abolition" of the Courts of First Instance carried with
it the abolition of their exclusive original jurisdiction in drug cases vested by Section 39 of R.A. No.
6425, as amended by P. D. No. 44. If that were so, then so must it be with respect to Article 360 of
the Revised Penal Code and Section 57 of the Decree on Intellectual Property. On the contrary, in
the resolution of 19 June 1996 in Caro v. Court of Appeals and in the resolution of 26 February 1997
in Villalon v. Ba/dado, this Court expressly ruled that Regional Trial Courts have the exclusive
original jurisdiction over libel cases pursuant to Article 360 of the Revised Penal Code. In
Administrative Order No. 104-96 this Court mandates that:

xxxx
The same Administrative Order recognizes that violations of RA. No. 6425, as amended, regardless
of the quantity involved, are to be tried and decided by the Regional Trial Courts therein designated
as special courts. (Emphasis and underscoring supplied)
94

Yet, much has been made of the terminology used in Section 90 of RA 9165. The dissents would
highlight the provision's departure from Section 39 of RA 6425 - the erstwhile drugs law, which
provides:

SECTION 39. Jurisdiction of the Circuit Criminal Court. - The Circuit Criminal Court shall have
exclusive original jurisdiction over all cases involving offenses punishable under this Act.

For those in the dissent, the failure to reproduce the phrase "exclusive original jurisdiction" is a clear
indication that no court, least of all the RTC, has been vested with such "exclusive original
jurisdiction" so that even the Sandiganbayan can take cognizance and resolve a criminal prosecution
for violation of RA 9165.

As thoroughly discussed by Justice Peralta in his Concurring Opinion, such deduction is

unwarranted given the clear intent of the legislature not only to retain the "exclusive original
jurisdiction" of the RTCs over violations of the drugs law but to segregate from among the several
RTCs of each judicial region some RTCs that will "exclusively try and hear cases involving violations
of [RA 9165)." If at all, the change introduced by the new phraseology of Section 90, RA 9165 is not
the deprivation of the RTCs' "exclusive original jurisdiction" but the further restriction of this
"exclusive original jurisdiction" to select RTCs of each judicial region. This intent can be clearly
gleaned from the interpellation on House Bill No. 4433, entitled "An Act Instituting the Dangerous
Drugs Act of 2002, repealing Republic Act No. 6425, as amended:"

Initially, Rep. Dilangalen referred to the fact sheet attached to the Bill which states that the measure
will undertake a comprehensive amendment to the existing law on dangerous drugs -- RA No. 6425,
as amended. Adverting to Section 64 of the Bill on the repealing clause, he then asked whether the
Committee is in effect amending or repealing the aforecited law. Rep. Cuenco replied that any
provision of law which is in conflict with the provisions of the Bill is repealed and/or modified
accordingly.

In this regard, Rep. Dilangalen suggested that if the Committee's intention was only to amend RA
No. 6425, then the wording used should be "to amend" and not "to repeal" with regard to the
provisions that are contrary to the provisions of the Bill.

Adverting to Article VIII, Section 60, on Jurisdiction Over Dangerous Drugs Case, which provides
that "the Supreme Court shall designate regional trial courts to have original jurisdiction over all
offenses punishable by this Act," Rep. Dilangalen inquired whether it is the Committee's intention
that certain RTC salas will be designated by the Supreme Court to try drug-related offenses,
although all RTCs have original jurisdiction over those offenses.

Rep. Cuenco replied in the affirmative. He pointed that at present, the Supreme Court's assignment
of drug cases to certain judges is not exclusive because the latter can still handle cases other than
drug-related cases. He added that the Committee's intention is to assign drug-related cases to
judges who will handle exclusively these cases assigned to them.

In this regard, Rep. Dilangalen stated that, at the appropriate time, he would like to propose the
following amendment; "The Supreme Court shall designate specific salas of the RTC to try
exclusively offenses related to drugs."
Rep. Cuenca agreed therewith, adding that the Body is proposing the creation of exclusive drug
courts because at present, almost all of the judges are besieged by a lot of drug cases some of
which have been pending for almost 20 years. (Emphasis and underscoring supplied.)
95

Per the "Records of the Bilateral Conference Committee on the Disagreeing Provisions of Senate Bill
No. 1858 and House Bill No. 4433," the term "designation" of R TCs that will exclusively handle
drug-related offenses was used to skirt the budgetary requirements that might accrue by the
"creation" of exclusive drugs courts. It was never intended to divest the R TCs of their exclusive
original jurisdiction over drug-related cases. The Records are clear:

THE CHAIRMAN (REP. CUENCO). x x x [W]e would like to propose the creation of drug courts to
handle exclusively drug cases; the imposition of a 60-day deadline on courts within which to decide
drug cases; and No. 3, provide penalties on officers of the law and government prosecutors for
mishandling and delaying drugs cases.

We will address these concerns one by one.

1. The possible creation of drugs courts to handle exclusively drug cases. Any comments?

xxxx

THE CHAIRMAN (SEN. BARBERS). We have no objection to this proposal, Mr. Chairman. As a
matter of fact, this is one of the areas where we come into an agreement when we were in Japan.
However, I just would like to add a paragraph after the word "Act" in Section 86 of the Senate
versions, Mr. Chairman. And this is in connection with the designation of special courts by "The
Supreme Court shall designate special courts from among the existing Regional Trial Courts in each
judicial region to exclusively try and hear cases involving violations of this Act. The number of court
designated in each judicial region shall be based on the population and the number of pending
cases in their respective jurisdiction." That is my proposal, Mr. Chairman.

THE CHAIRMAN (REP. CUENCO). We adopt the same proposal.

xxxx

THE CHAIRMAN (SEN. BARBERS). I have no problem with that, Mr. Chairman, but I'd like to call
your attention to the fact that my proposal is only for designation because if it is for a creation that
would entail another budget, Mr. Chairman. And almost always, the Department of Budget would tell
us at the budget hearing that we lack funds, we do not have money. So that might delay the very
purpose why we want the RTC or the municipal courts to handle exclusively the drug cases. That's
why my proposal is designation not creation.

THE CHAIRMAN (REP. CUENCO). Areglado. No problem, designation. Approved. 96

The exclusive original jurisdiction over violations of RA 9165 is not transferred to the Sandiganbayan
whenever the accused occupies a position classified as Grade 27 or higher, regardless of whether
the violation is alleged as committed in relation to office. The power of the Sandiganbayan to sit in
judgment of high-ranking government officials is not omnipotent. The Sandiganbayan's jurisdiction is
circumscribed by law and its limits are currently defined and prescribed by RA 10660, which
97

amended Presidential Decree No. (PD) 1606. As it now stands, the Sandiganbayan has jurisdiction
98

over the following:

SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the commission of the
offense:

(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically including:

xxxx

(2) Members of Congress and officials thereof classified as Grade '27' and higher under the
Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of
the Constitution; and

(5) All other national and local officials classified as Grade '27' and higher under the Compensation
and Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a. of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986. Provided, That the Regional Trial Court shall have exclusive original
jurisdiction where the information: (a) does not allege any damage to the government or any bribery;
or (b) alleges damage to the government or bribery arising from the same or closely related
transactions or acts in an amount not exceeding One Million pesos (₱l,000,000.00).

The foregoing immediately betrays that the Sandiganbayan primarily sits as a special anti-graft
court pursuant to a specific injunction in the 1973 Constitution. Its characterization and continuation
99

as such was expressly given a constitutional fiat under Section 4, Article XI of the 1987 Constitution,
which states:

SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function
and exercise its jurisdiction as now or hereafter may be provided by law.

It should occasion no surprise, therefore, that the Sandiganbayan is without jurisdiction to hear drug-
related cases. Even Section 4(b) of PD 1606, as amended by RA 10660, touted by the petitioner and
the dissents as a catchall provision, does not operate to strip the R TCs of its exclusive original
jurisdiction over violations of RA 9165. As pointed out by Justices Tijam and Martires, a perusal of
the drugs law will reveal that public officials were never considered excluded from its scope. Hence,
Section 27 of RA 9165 punishes government officials found to have benefited from the trafficking of
dangerous drugs, while Section 28 of the law imposes the maximum penalty on such government
officials and employees. The adverted sections read:
SECTION 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication
or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laborat01y Equipment Including the Proceeds or Properties
Obtained from the Unlawful Act Committed - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (Pl0,000,000.00), in
addition to absolute perpetual disqualification from any public office, shall be imposed upon any
public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized
or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds
or properties obtained from the unlawful acts as provided for in this Act.

Any elective local or national official found to have benefited from the proceeds of the trafficking of
dangerous drugs as prescribed in this Act, or have received any financial or material contributions or
donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed
in this Act, shall be removed from office and perpetually disqualified from holding any elective or
appointive positions in the government, its divisions, subdivisions, and intermediaries, including
government-owned or -controlled corporations.

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of
the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual
disqualification from any public office, if those found guilty of such unlawful acts are government
officials and employees. (Emphasis supplied)

Section 4(b) of PD 1606, as amended by RA 10660, provides but the general rule, couched in a
"broad and general phraseology. " Exceptions abound. Besides the jurisdiction on written
100

defamations and libel, as illustrated in Morales and People v. Benipayo, the RTC is likewise given
101 102

"exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the
Omnibus Election Code," regardless of whether such violation was committed by public officers
103

occupying positions classified as Grade 27 or higher in relation to their offices. In fact, offenses
committed by members of the Armed Forces in relation to their office, i.e., in the words of RA
7055, "service-connected crimes or offenses," are not cognizable by the Sandiganbayan but by
104

court-martial.

Certainly, jurisdiction over offenses and felonies committed by public officers is not determined solely
by the pay scale or by the fact that they were committed "in relation to their office." In determining
the forum vested with the jurisdiction to try and decide criminal actions, the laws governing the
subject matter of the criminal prosecution must likewise be considered.

In this case, RA 9165 specifies the RTC as the court with the jurisdiction to "exclusively try and
hear cases involving violations of [RA 9165)." This is an exception, couched in the special law
on dangerous drugs, to the general rule under Section 4(b) of PD 1606, as amended by RA
10660. It is a canon of statutory construction that a special law prevails over a general law and the
latter is to be considered as an exception to the general. 105

Parenthetically, it has been advanced that RA 10660 has repealed Section 90 of RA 9165. However,
a closer look at the repealing clause of RA 10660 will show that there is no express repeal of Section
90 of RA 9165 and well-entrenched is the rule that an implied repeal is disfavored. It is only accepted
upon the clearest proof of inconsistency so repugnant that the two laws cannot be enforced. The 106

presumption against implied repeal is stronger when of two laws involved one is special and the
other general. The mentioned rule in statutory construction that a special law prevails over a
107

general law applies regardless of the laws' respective dates of passage. Thus, this Court ruled:
 x x x [I]t is a canon of statutory construction that a special law prevails over a general law -
regardless of their dates of passage - and the special is to be considered as remaining an exception
to the general.

So also, every effort must be exerted to avoid a conflict between statutes. If reasonable construction
is possible, the laws must be reconciled in that manner.

Repeals of laws by implication moreover are not favored, and the mere repugnancy between two
statutes should be very clear to warrant the court in holding that the later in time repeals the other. 108

To reiterate for emphasis, Section 4(b) of PD 1606, as amended by RA 10660, is the general
law on jurisdiction of the Sandiganbayan over crimes and offenses committed by high-ranking public
officers in relation to their office; Section 90, RA 9165 is the special law excluding from the
Sandiganbayan's jurisdiction violations of RA 9165 committed by such public officers. In the latter
case, jurisdiction is vested upon the RTCs designated by the Supreme Court as drugs court,
regardless of whether the violation of RA 9165 was committed in relation to the public officials' office.

The exceptional rule provided under Section 90, RA 9165 relegating original exclusive jurisdiction to
RTCs specially designated by the Supreme Court logically follows given the technical aspect of drug-
related cases. With the proliferation of cases involving violation of RA 9165, it is easy to dismiss
them as common and untechnical. However, narcotic substances possess unique characteristics
that render them not readily identifiable. In fact, they must first be subjected to scientific analysis by
109

forensic chemists to determine their composition and nature. Thus, judges presiding over
110

designated drugs courts are specially trained by the Philippine Judicial Academy (PhilJa) and given
scientific instructions to equip them with the proper tools to appreciate pharmacological evidence
and give analytical insight upon this esoteric subject. After all, the primary consideration of RA 9165
is the fact that the substances involved are, in fact, dangerous drugs, their plant sources, or their
controlled precursors and essential chemicals. Without a doubt, not one of the Sandiganbayan
justices were provided with knowledge and technical expertise on matters relating to prohibited
substances.

Hard figures likewise support the original and exclusive jurisdiction of the RTCs over violations of RA
9165. As previously stated, as of June 30, 2017, there are 232,557 drugs cases pending before the
RTCs. On the other hand, not even a single case filed before the Sandiganbayan from February
1979 to June 30, 2017 dealt with violations of the drugs law. Instead, true to its designation as an
anti-graft court, the bulk of the cases filed before the Sandiganbayan involve violations of RA 3019,
entitled the "Anti-Graft and Corrupt Practices Act" and malversation. With these, it would not only
111

be unwise but reckless to allow the tribunal uninstructed and inexperienced with the intricacies of
drugs cases to hear and decide violations of RA 9165 solely on account of the pay scale of the
accused.

Likewise of special significance is the proviso introduced by RA 10660 which, to reiterate for
emphasis, states:

Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the
information: (a) does not allege any damage to the government or any bribery; or (b) alleges
damage to the government or bribery arising from the same or closely related transactions or acts in
an amount not exceeding One million pesos (₱l,000,000.00).

The clear import of the new paragraph introduced by RA 10660 is to streamline the cases handled
by the Sandiganbayan by delegating to the RTCs some cases involving high-ranking public officials.
With the dissents' proposition, opening the Sandiganbayan to the influx of drug-related cases, RA
10660 which was intended to unclog the dockets of the Sandiganbayan would all be for naught.
Hence, sustaining the RTC's jurisdiction over drug-related cases despite the accused's high-ranking
position, as in this case, is all the more proper.

Even granting arguendo that the Court declares the Sandiganbayan has jurisdiction over the
information subject of Criminal Case No. 17-165, still it will not automatically result in the release
from detention and restore the liberty and freedom of petitioner. The R TC has several options if it
dismisses the criminal case based on the grounds raised by petitioner in her Motion to Quash.

Under Rule 117 of the Rules of Court, the trial court has three (3) possible alternative actions when
confronted with a Motion to Quash:

1. Order the amendment of the Infonnation;

2. Sustain the Motion to Quash; or

3. Deny the Motion to Quash.

The first two options are available to the trial court where the motion to quash is meritorious.
Specifically, as to the first option, this court had held that should the Information be deficient or
lacking in any material allegation, the trial court can order the amendment of the Information under
Section 4, Rule 117 of the Rules of Court, which states:

SECTION 4. Amendment of Complaint or Information. - If the motion to quash is based on an

alleged defect of the complaint or information which can be cured by amendment, the court shall
order that an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the defect by amendment. The motion shall be
granted if the prosecution fails to make the amendment, or the complaint or information still suffers
from the same defect despite the amendment.

The failure of the trial court to order the correction of a defect in the Information curable by an
amendment amounts to an arbitrary exercise of power. So, this Court held in Dio v. People:

This Court has held that failure to provide the prosecution with the opportunity to amend is an
arbitrary exercise of power. In People v. Sandiganbayan (Fourth Division): When a motion to quash
is filed challenging the validity and sufficiency of an Information, and the defect may be cured by
amendment, courts must deny the motion to quash and order the prosecution to file an amended
Information. Generally, a defect pertaining to the failure of an Information to charge facts constituting
an offense is one that may be corrected by an amendment. In such instances, courts are mandated
not to automatically quash the Information; rather, it should grant the prosecution the opportunity to
cure the defect through an amendment. This rule allows a case to proceed without undue delay. By
allowing the defect to be cured by simple amendment, unnecessary appeals based on technical
grounds, which only result to prolonging the proceedings, are avoided.

More than this practical consideration, however, is the due process underpinnings of this rule. As
explained by this Court in People v. Andrade, the State, just like any other litigant, is entitled to its
day in court. Thus, a court's refusal to grant the prosecution the opportunity to amend an
Information, where such right is expressly granted under the Rules of Court and affirmed time and
again in a string of Supreme Court decisions, effectively curtails the State's right to due process. 112
Notably, the defect involved in Dio was the Information's failure to establish the venue - a matter of
jurisdiction in criminal cases. Thus, in the case at bar where petitioner has not yet been arraigned,
the court a quo has the power to order the amendment of the February 17, 2017 Information filed
against the petitioner. This power to order the amendment is not reposed with this Court in the
exercise of its certiorari powers.

Nevertheless, should the trial court sustain the motion by actually ordering the quashal of the
Infonnation, the prosecution is not precluded from filing another information. An order sustaining the
motion to quash the information would neither bar another prosecution or require the release of the
113

accused from custody. Instead, under Section 5, Rule 117 of the Rules of Court, the trial court can
simply order that another complaint or information be filed without discharging the accused from
custody. Section 5, Rule 117 states, thus:

Section 5. Effect of sustaining the motion to quash. - If the motion to quash is sustained, the court
may order that another complaint or information be filed except as provided in Section 6 of this rule.
If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no
order is made or if having been made, no new information is filed within the time specified in the
order or within such further time as the court may allow for good cause, the accused, if in custody,
shall be discharged unless he is also in custody for another charge.

Section 6, Rule 117, adverted to in the foregoing provision, prevents the re-filing of an information on
only two grounds: that the criminal action or liability has already been extinguished, and that of
double jeopardy. Neither was invoked in petitioner's Motion to Quash filed before the court a quo.

The third option available to the trial court is the denial of the motion to quash. Even granting, for the
nonce, the petitioner's position that the trial court's issuance of the warrant for her arrest is an
implied denial of her Motion to Quash, the proper remedy against this court action is to proceed to
trial, not to file the present petition for certiorari. This Court in Galzote v. Briones reiterated this
established doctrine:

A preliminary consideration in this case relates to the propriety of the chosen legal remedies availed
of by the petitioner in the lower courts to question the denial of his motion to quash. In the usual
course of procedure, a denial of a motion to quash filed by the accused results in the continuation of
the trial and the determination of the guilt or innocence of the accused. If a judgment of conviction is
rendered and the lower court's decision of conviction is appealed, the accused can then raise the
denial of his motion to quash not only as an error committed by the trial court but as an added
ground to overturn the latter's ruling.

In this case, the petitioner did not proceed to trial but opted to immediately question the denial of his
motion to quash via a special civil action for certiorari under Rule 65 of the Rules of Court.

As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal
from an interlocutory order is not allowed under Section 1 (b), Rule 41 of the Rules of Court. Neither
can it be a proper subject of a petition for certiorari which can be used only in the absence of an
appeal or any other adequate, plain and speedy remedy. The plain and speedy remedy upon denial
of an interlocutory order is to proceed to trial as discussed above. (Emphasis and underscoring
114

supplied)

At this juncture, it must be stressed yet again that the trial court has been denied the opportunity to
act and rule on petitioner's motion when the latter jumped the gun and prematurely repaired
posthaste to this Court, thereby immobilizing the trial court in its tracks. Verily, De Lima should have
waited for the decision on her motion to quash instead of prematurely filing the instant recourse.
In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition
and direct the trial court to rule on the Motion to Quash and undertake all the necessary proceedings
to expedite the adjudication of the subject criminal case.

RESPONDENT JUDGE DID NOT ABUSE HER DISCRETION IN FINDING PROBABLE CAUSE TO
ORDER THE PETITIONER'S ARREST

The basis for petitioner's contention that respondent judge committed grave abuse of discretion in
issuing the February 23, 2017 Order finding probable cause to arrest the petitioner is two-pronged:
115

respondent judge should have first resolved the pending Motion to Quash before ordering the
petitioner's arrest; and there is no probable cause to justify the petitioner's arrest.

Grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an
evasion of positive duty or a virtual refusal to act at all in contemplation of the law. 116

In the present case, the respondent judge had no positive duty to first resolve the Motion to
Quash before issuing a warrant of arrest. There is no rule of procedure, statute, or jurisprudence to
support the petitioner's claim. Rather, Sec.5(a), Rule 112 of the Rules of Court required the
117

respondent judge to evaluate the prosecutor's resolution and its supporting evidence within a limited
period of only ten (10) days, viz.:

SEC. 5. When warrant of arrest may issue. -

(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the
complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved by the court within thirty (30) days
from the filing of the complaint or information.

It is not far-fetched to conclude, therefore, that had the respondent judge waited longer and first
attended to the petitioner's Motion to Quash, she would have exposed herself to a possible
administrative liability for failure to observe Sec. 5(a), Rule 112 of the Rules of Court. Her exercise of
discretion was sound and in conformity with the provisions of the Rules of Court considering that
a Motion to Quash may be filed and, thus resolved by a trial court judge, at any time before the
accused petitioner enters her plea. What is more, it is in accord with this Court's ruling in Marcos v.
118

Cabrera-Faller that "[a]s the presiding judge, it was her task, upon the filing of the Information, to
119

first and foremost determine the existence or non-existence of probable cause for the arrest of the
accused."

This Court's ruling in Miranda v. Tuliao does not support the petitioner's position. Miranda does not
120

prevent a trial court from ordering the arrest of an accused even pending a motion to quash the
infonnation. At most, it simply explains that an accused can seek judicial relief even if he has not yet
been taken in the custody of law.

Undoubtedly, contrary to petitioner's postulation, there is no rule or basic principle requiring a trial
judge to first resolve a motion to quash, whether grounded on lack of jurisdiction or not, before
issuing a warrant of arrest. As such, respondent judge committed no grave abuse of discretion in
issuing the assailed February 23, 2017 Order even before resolving petitioner's Motion to
Quash. There is certainly no indication that respondent judge deviated from the usual procedure in
finding probable cause to issue the petitioner's arrest.

And yet, petitioner further contends that the language of the February 23, 2017 Order violated her
constitutional rights and is contrary to the doctrine in Soliven v. Makasiar. Petitioner maintains that
121

respondent judge failed to personally determine the probable cause for the issuance of the warrant
of arrest since, as stated in the assailed Order, respondent judge based her findings on the evidence
presented during the preliminary investigation and not on the report and supporting documents
submitted by the prosecutor. This hardly deserves serious consideration.
122

Personal determination of the existence of probable cause by the judge is required before a warrant
of arrest may issue. The Constitution and the Revised Rules of Criminal Procedure command the
123 124

judge "to refrain from making a mindless acquiescence to the prosecutor's findings and to conduct
his own examination of the facts and circumstances presented by both parties. " This much is clear
125

from this Court's n1ling in Soliven cited by the petitioner, viz.:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may disregard the fiscal's report and require the submission
of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause. 126

It must be emphasized, however, that in determining the probable cause to issue the warrant of
arrest against the petitioner, respondent judge evaluated the Information and "all the evidence
presented during the preliminary investigation conducted in this case." The assailed February 23,
2017 Order is here restated for easy reference and provides, thusly:

After a careful evaluation of the herein Information and all the evidence presented during the
preliminary investigation conducted in this case by the Department of Justice, Manila, the Court finds
sufficient probable cause for the issuance of Warrants of Arrest against all the accused LEILA M. DE
LIMA x x x. (Emphasis supplied.)
127

As the prosecutor's report/resolution precisely finds support from the evidence presented during the
preliminary investigation, this Court cannot consider the respondent judge to have evaded her duty
or refused to perform her obligation to satisfy herself that substantial basis exists for the petitioner's
arrest. "All the evidence presented during the preliminary investigation" encompasses a broader
category than the "supporting evidence" required to be evaluated in Soliven. It may perhaps even be
stated that respondent judge performed her duty in a manner that far exceeds what is required of her
by the rules when she reviewed all the evidence, not just the supporting documents. At the very
least, she certainly discharged a judge's duty in finding probable cause for the issuance of a warrant,
as described in Ho v. People:

The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we
explained again what probable cause means. Probable cause for the issuance of a warrant of arrest
is the existence of such facts and circumstances that would lead a reasonably discreet and prudent
person to believe that an offense has been committed by the person sought to be arrested. Hence,
the judge, before issuing a warrant of arrest, 'must satisfy himself that based on the evidence
submitted, there is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof' At this stage of the criminal proceeding, the judge is not yet
tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient
that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon we
stressed that the judge merely determines the probability, not the certainty, of guilt of the accused
and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the
prosecutor's initial determination finding probable cause to see if it is supported by substantial
evidence."

xxxx

x x x [T]he judge cannot rely solely on the report of the prosecutor in finding probable cause to justify
the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's
report will support his own conclusion that there is reason to charge the accused for an offense and
hold him for trial. However, the judge must decide independently. Hence, he must have supporting
evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on
the existence (or non-existence) of probable cause to issue an arrest order. This responsibility of
determining personally and independently the existence or nonexistence of probable cause is lodged
in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the
burden of the judge and speed up the litigation process by forwarding to the latter not only the
information and his bare resolution finding probable cause, but also so much of the records and the
evidence on hand as to enable His Honor to make his personal and separate judicial finding on
whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have
sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcript of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to
the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's
recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and functions, which in turn gives
his report the presumption of accuracy, the Constitution, we repeat, commands the judge to
personally determine probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on the certification or the
report of the investigating officer. (Emphasis supplied.)
128

Notably, for purposes of determining the propriety of the issuance of a warrant of arrest, the judge is
tasked to merely determine the probability, not the certainty, of the guilt of the accused. She is
129

given wide latitude of discretion in the determination of probable cause for the issuance of warrants
of arrest. A finding of probable cause to order the accused's arrest does not require an inquiry into
130

whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the
131

act or omission complained of constitutes the offense charged. 132

Again, per the February 23, 2017 Order, respondent judge evaluated all the evidence presented
during the preliminary investigation and on the basis thereof found probable cause to issue the
warrant of arrest against the petitioner. This is not surprising given that the only evidence available
on record are those provided by the complainants and the petitioner, in fact, did not present any
counter-affidavit or evidence to controvert this. Thus, there is nothing to disprove the following
preliminary findings of the DOJ prosecutors relative to the allegations in the Information filed in
Criminal Case No. 17-165:
Thus, from November 2012 to March 2013, De Lima[,] Ragos and Dayan should be indicted for
violation of Section 5, in relation to Section 3Gj), Section 26(b) and Section 28, of R.A. 9165, owing
to the delivery of PS million in two (2) occasions, on 24 November 2012 and 15 December 2012, to
Dayan and De Lima. The monies came inmate Peter Co [were] proceeds from illicit drug trade,
which were given to support the senatorial bid of De Lima.

Also in the same period, Dayan demanded from Ragos money to support the senatorial bid of De
Lima. Ragos demanded and received ₱100,000 tara from each of the high-profile inmates in
exchange for privileges, including their illicit drug trade. Ablen collected the money for Ragos who, in
turn, delivered them to Dayan at De Lima's residence. 133

The foregoing findings of the DOJ find support in the affidavits and testimonies of several persons.
For instance, in his Affidavit dated September 3, 2016, NBI agent Jovencio P. Ablen, Jr.
narrated, viz.:

21. On the morning of 24 November 2012, I received a call from Dep. Dir. Ragos asking where I
was. I told him I was at home. He replied that he will fetch me to accompany him on a very important
task.

22. Approximately an hour later, he arrived at my house. I boarded his vehicle, a Hyundai Tucson,
with plate no. RGU910. He then told me that he will deliver something to the then Secretary of
Justice, Sen. Leila De Lima. He continued and said "Nior confidential 'to. Tayong dalawa lang ang
nakakaalam nito. Dadalhin natin yung quota kay Lola. SM 'yang nasa bag. Tingnan mo."

23. The black bag he was referring to was in front of my feet. It [was a] black handbag. When I
opened the bag, I saw bundles of One Thousand Peso bills. 1âwphi1

24. At about 10 o'clock in the morning, we arrived at the house located at Laguna Bay corner Subic
Bay Drive, South Bay Village, Paranaque City.

25. Dep. Dir. Ragos parked his vehicle in front of the house. We both alighted the vehicle but he told
me to stay. He then proceeded to the house.

26. From our parked vehicle, I saw Mr. Ronnie Dayan open the gate. Dep. Dir. Ragos then handed
the black handbag containing bundles of one thousand peso bills to Mr. Dayan.

27. At that time, I also saw the then DOJ Sec. De Lima at the main door of the house. She was
wearing plain clothes which is commonly known referred to as "duster."

28. The house was elevated from the road and the fence was not high that is why I was able to
clearly see the person at the main door, that is, Sen. De Lima.

29. When Dep. Dir. Ragos and Mr. Dayan reached the main door, I saw Mr. Dayan hand the black
handbag to Sen. De Lima, which she received. The three of them then entered the house.

30. After about thirty (30) minutes, Dep. Dir. Ragos went out of the house. He no longer has the
black handbag with him.

31. We then drove to the BuCor Director's Quarters in Muntinlupa City. While cruising, Dep. Dir.
Ragos told me "Nior 'wag kang maingay kahit kanino at wala kang nakita ha," to which I
replied "Sabi mo e. e di wala akong nakita."
32. On the morning of 15 December 2012, Dep. Dir. Ragos again fetched me from my house and we
proceeded to the same house located at Laguna Bay comer Subic Bay Drive, South Bay Village,
Paranaque City.

33. That time, I saw a plastic bag in front of my feet. I asked Dep. Dir. Ragos "Quota na naman
Sir?"Dep. Dir. Ragos replied "Ano pa nga ba, 'tang ina sila lang meron. " 134

Petitioner's co-accused, Rafael Ragos, recounted in his own Affidavit dated September 26, 2016 a
similar scenario:

8. One morning on the latter part of November 2012, I saw a black handbag containing a huge sum
of money on my bed inside the Director's Quarters of the BuCor. I looked inside the black handbag
and saw that it contains bundles of one thousand peso bills.

9. I then received a call asking me to deliver the black handbag to Mr. Ronnie Dayan. The caller said
the black handbag came from Peter Co and it contains "Limang Manoi<' which means Five Million
Pesos (Php5,000,000.00) as a "manoR' refers to One Million Pesos (Php 1,000,000.00) in the
vernacular inside the New Bilibid Prison.

10. As I personally know Mr. Dayan and knows that he stays in the house of the then DOJ Sec. Leila
M. De Lima located at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, I
knew I had to deliver the black handbag to Sen. De Lima at the said address.

11. Before proceeding to the house of Sen. De Lima at the above[-]mentioned address, I called Mr.
Ablen to accompany me in delivering the money. I told him we were going to do an important task.

12. Mr. Ablen agreed to accompany me so I fetched him from his house and we proceeded to the
house of Sen. De Lima at the above-mentioned address.

13. While we were in the car, I told Mr. Ablen that the important task we will do is deliver Five Million
Pesos (Php5,000,000.00) "Quota" to Sen. De Lima. I also told him that the money was in the black
handbag that was on the floor of the passenger seat (in front of him) and he could check it, to which
Mr. Ablen complied.

14. Before noon, we arrived at the house of Sen. De Lima located at Laguna Bay corner Subic Bay
Drive, South Bay Village, Paranaque City.

15. I parked my vehicle in front of the house. Both Mr. Ablen and I alighted from the vehicle but I
went to the gate alone carrying the black handbag containing the Five Million Pesos
(Php5,000,000.00).

16. At the gate, Mr. Ronnie Dayan greeted me and opened the gate for me. I then handed the
handbag containing the money to Mr. Dayan.

17. We then proceeded to the main door of the house where Sen. De Lima was waiting for us. At the
main door, Mr. Dayan handed the black handbag to Sen. De Lima, who received the same. We then
entered the house.

18. About thirty minutes after, I went out of the house and proceeded to my quarters at the BuCor,
Muntinlupa City.
19. One morning in the middle part of December 2012, I received a call to again deliver the plastic
bag containing money from Peter Co to Mr. Ronnie Dayan. This time the money was packed in a
plastic bag left on my bed inside my quarters at the BuCor, Muntinlupa City. From the outside of the
bag, I could easily perceive that it contains money because the bag is translucent.

20. Just like before, I fetched Mr. Ablen from his house before proceeding to the house of Sen. De
Lima located at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, where I
know I could find Mr. Dayan.

21. In the car, Mr. Ablen asked me if we are going to deliver "quota." I answered yes.

22. We arrived at the house of Sen. De Lima at the above[-]mentioned address at noontime. I again
parked in front of the house.

23. I carried the plastic bag containing money to the house. At the gate, I was greeted by Mr. Ronnie
Dayan. At that point, I handed the bag to Mr. Dayan. He received the bag and we proceeded inside
the house. 135

The source of the monies delivered to petitioner De Lima was expressly bared by several felons
incarcerated inside the NBP. Among them is Peter Co, who testified in the following manner:

6. Noong huling bahagi ng 2012, sinabi sa akin ni Hans Tanna nanghihingi ng kontribusyon sa
mgaChinese sa Maximum Security Compound ng NBP si dating DOJ Sec. De Lima para sa
kanyang planong pagtakbo sa senado sa 2013 Elections. Dalawang beses akong nagbigay ng tig-
P5 Million para tugunan ang hiling ni Sen. De Lima, na dating DOJ Secretary;

7. Binigay ko ang mga halagang ito kay Hans Tan para maibigay kay Sen. Leila De Lima na
datingDOJ Secretary. Sa parehong pagkakataon, sinabihan na lang ako ni Hans Tan na naibigay na
ang pera kay Ronnie Dayan na siyang tumatanggap ng pera para kay dating DOJ Sec. De
Lima Sinabi rin niHans Tanna ang nagdeliver ng pera ay si dating OIC ng BuCor na si Rafael Ragos.

8. Sa kabuuan, nakapagbigay ang mga Chinese sa loob ng Maximum ng PIO Million sa mga huling
bahagi ng taong 2012 kay dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado
sa2013 Elections. Ang mga perang ito ay mula sa pinagbentahan ng illegal na droga. 136

All these, at least preliminarily, outline a case for illegal drug trading committed in conspiracy by the
petitioner and her co-accused. Thus, the Court cannot sustain the allegation that respondent judge
committed grave abuse of discretion in issuing the assailed Order for petitioner's arrest.

Petitioner would later confine herself to the contention that the prosecution's evidence is
inadmissible, provided as they were by petitioner's co-accused who are convicted felons and whose
testimonies are but hearsay evidence.

Nowhere in Ramos v. Sandiganbayan - the case relied upon by petitioner - did this Court rule that
137

testimonies given by a co-accused are of no value. The Court simply held that said testimonies
should be received with great caution, but not that they would not be considered. The testimony of
Ramos' co-accused was, in fact, admitted in the cited case. Furthermore, this Court explicitly ruled
in Estrada v. Office of the Ombudsman that hearsay evidence is admissible during preliminary
138

investigation. The Court held thusly:

Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. (Emphasis supplied.)
139

Verily, the admissibility of evidence, their evidentiary weight, probative value, and the credibility of
140

the witness are matters that are best left to be resolved in a full-blown trial, not during a preliminary
141

investigation where the technical rules of evidence are not applied nor at the stage of the
142

determination of probable cause for the issuance of a warrant of arrest. Thus, the better alternative
is to proceed to the conduct of trial on the merits for the petitioner and the prosecution to present
their respective evidence in support of their allegations.

With the foregoing disquisitions, the provisional reliefs prayed for, as a consequence, have to be
rejected.

WHEREFORE, the instant petition for prohibition and certiorari is DISMISSED for lack of merit. The
Regional Trial Court of Muntinlupa City, Branch 204 is ordered to proceed with dispatch with Criminal
Case N6.17-165. So ordered

March 6, 2017

G.R. No. 197482

FORIETRANS MANUFACTURING CORP., AGERICO CALAQUIAN and ALVIN

MONTERO, Petitioners
vs
DAVIDOFF ET. CIE SA & JAPAN TOBACCCO, INC. (represented by SYCIP SALAZAR
HERNANDEZ & GATMAITAN LAW OFFICE thru ATTY. RONALD MARK LLENO), Respondents

DECISION

JARDELEZA, J.:

This is a Petition for Review on Certiorari assailing the March 31, 2011 Decision and July 5, 2011
1 2

Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 94587. The CA reversed and set aside
3 4

the February 10, 2006 and March 27, 2006 Resolutions of the Secretary of Justice which found no
5 6

probable cause to charge petitioners for the crimes of infringement and false designation of origin.

Davidoff Et. Cie SA (Davidoff) and Japan Tobacco, Inc. (JTI) [collectively, respondents] are non-
resident foreign corporations organized and existing under the laws of Switzerland and Japan,
respectively. They are represented in the Philippines by law firm SyCip Salazar Hernandez &
7

Gatmaitan (SyCip Law Firm). It is authorized under a special power of attorney to maintain and
prosecute legal actions against any manufacturers, local importers and/or distributors, dealers or
retailers of counterfeit products bearing Davidoff s and JTI' s trademarks or any products infringing
their trademarks. Respondents also retained Business Profiles, Inc. (BPI) as their private
8

investigator in the Philippines.

9
Meanwhile, petitioner Forietrans Manufacturing Corporation (FMC) is a domestic corporation with
principal address at Lots 5 and 7, Angeles Industrial Park, Special Economic Zone, Barangay
Calibutbut, Bacolor, Pampanga. 10

BPI reported to respondents that "there were counterfeit Davidoff and JTI products, or products
bearing colorable imitation of Davidoff and JTI products, or which are confusingly or deceivingly
similar to Davidoff and JTI registered trademarks, being manufactured and stored" in FMC' s
warehouses. SyCip Law Firm then sought the assistance of the Criminal Investigation and
11

Detection Group (CIDG) of the Philippine National Police in securing warrants to search the
warehouses. Upon investigation, the CIDG confirmed the report of BPI. On August 4, 2004, PSI Joel
L. De Mesa (PSI De Mesa) of the CIDG filed four separate applications for search warrant before the
Regional Trial Court (RTC) of San Fernando, Pampanga. The applications were docketed as Search
Warrant (SW) Case Nos. 044, 045, 046, and 047 and raffled to Branch 42 presided by Judge Pedro
M. Sunga, Jr. (Judge Sunga). 12

In the applications, PSI De Mesa alleged that "he had been informed, concluded upon investigation,
and believed that [FMC] and/or its proprietors, directors, officers, employees, and/or occupants of its
premises stored counterfeit cigarettes" bearing: (a) the name "DAGETA

International" purported to be made in Germany; and (b) the name "DAG ET A" which was
confusingly similar to the Davidoff trademark, a product of Imperial Tobacco, Inc. Thus, he asked the
RTC to issue search warrants authorizing any peace officer to take possession of the subject articles
and bring them before the court. 13

The RTC granted the applications. In the same afternoon of August 4, 2004, PSI Nathaniel Villegas
(PSI Villegas) and PSI Eric Maniego (PSI Maniego) implemented SW Nos. 044 and 046, while PSI
De Mesa implemented SW Nos. 045 and 047. During their separate raids, the CIDG teams seized
several boxes containing raw tobacco, cigarettes, cigarette packs, and cigarette reams bearing the
name DAGETA and DAGETA International. They also secured machineries, receptacles, other
paraphernalia, sales invoices and official receipts. Petitioner Agerico Calaquian, president of FMC,
was allegedly apprehended at the premises along with four Chinese nationals. 14

With the seized items as evidence, three separate Complaint-Affidavits were filed before the Office
of the Provincial Prosecutor of San Fernando, Pampanga charging FMC and its employees· with
violation of Republic Act No. 8293, or the Intellectual Property Code of the Philippines (IP
Code). The charges are as follows:
17

1. LS. No. OCPSF-04-H-2047 (Davidoff infringement case) - Infringement under Section 155 in
18

relation to Section 170 of the IP Code for the illegal manufacture of cigarettes bearing the DA GET A
label, with packaging very similar to the packaging of Davidoff's products and the script "DAGETA"
on the packs being deceivingly or confusingly similar to the registered mark "DAVIDOFF." 19

2. LS. No. OCPSF-04-H-2048 (False Designation of Origin) - False Designation of Origin under
Section 169 in relation to Section 170 of the IP Code for the illegal manufacture and/or storage of
cigarettes bearing the "DA GET A" label with an indication that such cigarettes were "MADE IN
GERMANY" though they were actually processed, manufactured and packaged in FMC's office in
Bacolor, Pampanga. 20

3. LS. No. OCPSF-04-H-2226 (JTI infringement case)- Infringement under Section 155 in relation to
Section 170 of the IP Code for illegally manufacturing cigarettes which are deceivingly or confusingly
similar to, or almost the same as, the registered marks of JTI, which are the "MILD SEVEN" and
"MILD SEVEN LIGHTS" trademarks. 21
Calaquian denied the charges against him and FMC. He countered that during the August 4, 2004
raid, the CIDG did not find counterfeit cigarettes within FMC's premises as nobody was there at the
time. He claimed that what the CIDG found were boxes of genuine Dageta and Dageta International
cigarettes imported from Germany for re-export to Taiwan and China. Calaquian asserted that FMC
is an eco-zone export enterprise registered with the Philippine Economic Zone Authority (PEZA), and
is duly authorized by the National Tobacco Administration to purchase, import and export tobacco.
FMC would not have passed PEZA's strict rules and close monitoring if it had engaged in trademark
infringement. Calaquian also denies that the CIDG made arrests on the occasion of the raid. 22

In a Joint Resolution dated September 12, 2005, Second Assistant Provincial Prosecutor Otto B.
23

Macabulos (Prosecutor Macabulos) dismissed the criminal complaints. Prosecutor Macabulos found
the affidavit of Jimmy Trocio (Trocio ), the informant/witness presented by PSI De Mesa in his
application for search warrants, clearly insufficient to show probable cause to search FMC's
premises for fake JTI or Davidoff products. Trocio did not even testify that FMC is manufacturing
fake Dageta cigarettes. The CIDG also did not find Dageta cigarettes during the raid, much less fake
JTI or Davidoff products. This should have been reason enough to quash the warrant. Further,
24

Prosecutor Macabulos held that there is no confusing similarity between the Dageta and Davidoff
brands. Thus, he found the complaints for the Davidoff infringement and False Designation of Origin
to be without menit.
25

Prosecutor Macabulos also expressed disbelief over the allegation that Mild Seven and Mild Seven
Lights were seized at FMC' s premises. He averred that the Joint Affidavit of Arrest/Seizure dated
August 6, 2004 never mentioned those cigarettes as among the items seized. Furthermore, there
was no proof that FMC manufactured fake Mild Seven cigarettes. Hence, he also dismissed the JTI
26

infringement case.

Respondents thereafter filed a Petition for Review before then Secretary of Justice Raul M.
Gonzalez (Secretary Gonzalez).

In his Resolution dated February 10, 2006, Secretary Gonzalez affirmed the ruling of Prosecutor
Macabulos. He opined that the seizure of Dageta and Dageta International cigarettes from FMC's
premises does not prove the commission of trademark infringement and false designation of origin. It
cannot be said that there is confusing similarity between Davidoff cigarettes, and Dageta and Dageta
International cigarettes. The difference in their names alone belies the alleged confusing similarity.
27

Secretary Gonzalez also affirmed the dismissal of the charge of false designation of origin. He ruled
that respondents failed to establish the falsity of the claim indicated in the labels of Dageta and
Dageta International cigarettes that they were made in Germany. 28

In addition, Secretary Gonzalez declared that the alleged discovery and seizure of Mild Seven and
Mild Seven Lights in FMC's premises during the August 4 and 5, 2004 raids did not actually happen.
He agreed with Calaquian that if indeed the officers and employees of FMC were found
manufacturing or assisting or supervising the manufacture of Mild Seven and Mild Seven Lights
during the raids, surely the raiding team would have arrested them then and there; but as it was, no
arrest was apparently made. Secretary Gonzalez also agreed with Prosecutor Macabulos'
observation that Mild Seven and Mild Seven Lights cigarettes were never mentioned among the
items seized in the Joint Affidavit of Arrest/Seizure.
29

Respondents moved for reconsideration. This, however, was denied with finality by Secretary
Gonzalez in his Resolution dated March 27, 2006. Respondents elevated the case to the CA via a
petition for certiorari.30
The CA reversed the resolutions of Secretary Gonzalez. It adjudged that Secretary Gonzalez acted
with grave abuse of discretion in affirming Prosecutor Macabulos' finding that no probable cause
exists against FMC.

The CA explained that Secretary Gonzalez assumed the function of the trial judge of calibrating the
evidence on record when he ruled that:

a. The seizure of Mild Seven and Mild Seven Lights during the raid did not happen as the arresting
officer failed to state in their Joint Affidavit that they seized the said cigarettes and if it were true that
they seized these cigarettes, the raiding team would have arrested Mr. Calaquian and four Chinese
nationals present during the raid; and

b. The seizure of Dageta and Dageta International cigarettes does not prove that FMC violated the
provisions on infringement of trademark and false designation of origin under the IP Code. 31

According to the CA, the foregoing involve evidentiary matters which can be better resolved in the
course of the trial, and Secretary Gonzalez was not in a competent position to pass judgment on
substantive matters. Petitioners filed a partial motion for reconsideration, but this was denied by the
32

CA. Hence, this petition.

Petitioners fault the CA for interfering with the valid exercise by Prosecutor Macabulos and Secretary
Gonzalez of the executive power to determine the existence or non-existence of probable cause in a
preliminary investigation. Heavily relying on the Joint Resolution issued by Prosecutor Macabulos,
33

they allege that respondents did not present any proof to show probable cause to indict them for the
crimes of infringement and false designation of origin. They contend that Secretary Gonzalez
34

affirmed the Joint Resolution and dismissed the criminal complaints based on insufficiency of
evidence since there was no proof that FMC manufactured counterfeit Davidoff or Mild Seven
cigarettes. Petitioners also insist that no court can order the prosecution of a person against whom
the prosecutor does not find sufficient evidence to support at least aprimafacie case. 35

In their Comment, respondents counter that the petition should be dismissed for failure to show any
special and important reason for this Court to exercise its power of review. They claim that the
petition is a mere rehash of FMC's arguments before the CA. In any case, respondents aver that
36

the CA correctly reversed the Resolutions of Secretary Gonzalez. Secretary Gonzalez acted without
or in excess of jurisdiction and with grave abuse of discretion when he completely disregarded the
evidence attached to the criminal complaints and wrongfully assumed the function of a trial judge in
passing upon factual or evidentiary matters which are best decided after a full-blown trial on the
merits.37

We are now asked to resolve whether the CA erred in ruling that Secretary Gonzalez committed
grave abuse of discretion in finding no probable cause to charge petitioners with trademark
infringement and false designation of origin.

II

We deny the petition.

Probable cause, for purposes of filing a criminal acti01i, is defined as such facts as are sufficient to
engender a well-founded belief that a crime has been committed and that respondent is probably
guilty thereof. It does not require an inquiry into whether there is sufficient evidence to procure
38

conviction. Only prima facie evidence is required or that which is, on its face, good and sufficient to
establish a given fact, or the group or chain of facts constituting the party's claim or defense; and
which, if not rebutted or contradicted, will remain sufficient.
39

The task of determining probable cause is lodged with the public prosecutor and ultimately, the
Secretary of Justice. Under the doctrine of separation of powers, courts have no right to directly
decide matters over which full discretionary authority has been delegated to the Executive Branch of
the Government. Thus, we have generally adopted a policy of non-interference with the executive
determination of probable cause. Where, however, there is a clear case of grave abuse of
40

discretion, courts are allowed to reverse the Secretary of Justice's findings and conclusions on
matters of probable cause. 41

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion is grave where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined
by or to act at all in contemplation of the law.
42

In Unilever Philippines, Inc. v. Tan, we have ruled that the dismissal of the complaint by the
Secretary of Justice, despite ample evidence to support a finding of probable cause, clearly
constitutes grave error and warrants judicial intervention and correction. 43

Here, we find that Secretary Gonzalez committed grave abuse of discretion when he disregarded
evidence on record and sustained the Joint Resolution of Prosecutor Macabulos dismissing the
criminal complaints against petitioners.

Preliminarily, we find that Secretary Gonzalez should have set aside the Joint Resolution on the
ground that Prosecutor Macabulos did not undertake to determine the existence or non-existence of
probable cause for the purpose of filing a criminal case. Nowhere in the Joint Resolution is it stated
that the criminal complaints were dismissed on account of lack of probable cause for the filing of a
case against petitioners. Instead, Prosecutor Macabulos attacked Judge Sunga's finding of probable
cause for the issuance of search warrants in SW Nos. 044, 045, 046, 047 and 048. The pertinent
portions of the Joint Resolution read:

As can be seen supra, Trocio's affidavit was clearly insufficient to show probable cause to search
FMC's premises and look for fake JTI or [Davidoff] products.

Xxx

It would seem that reason had taken leave of the senses. The undeniable fact, standing out like a
sore thumb, is that the applicants never presented a single shred of proof to show probable cause
for the issuance of a search warrant. It would have been laughable if not for the fact that persons
were arrested and detained and properties were confiscated. As can be seen, what began as a
search for fake JTI and [Davidoff] products changed into a search for fake Dageta International
cigarettes, then shifted to a sea[r]ch for fake Dageta cigarettes confusingly similar to Davidoff and
finally shifted to fake mislabeled Dageta cigarettes. One can only wonder why the applications were
granted without a shred of proof showing probable cause. The exception against unreasonable
searches and seizures became the very weapon to commit abuses that the provision was designed
to prevent. (Emphasis supplied.)
44
The determination of probable cause by the judge .should not be confused with the determination of
probable cause by the prosecutor. The first is made by the judge to ascertain whether a warrant of
arrest should be issued against the accused, or for purposes of this case, whether a search warrant
should be issued. The second is made by the prosecutor during preliminary investigation to
determine whether a criminal case should be filed in court. The prosecutor has no power or authority
to review the determination of probable cause by the judge, just as the latter does not act as the
appellate court of the former. Here, as correctly argued by respondents, Prosecutor Macabulos
45

focused on the evidence submitted before Judge Sunga to support the issuance of search
warrants. He lost sight of the fact that as a prosecutor, he should evaluate only the evidence
46

presented before him during the preliminary investigation. With his preconceived notion of the
invalidity of the search warrants in mind,

Prosecutor Macabulos appeared to have completely ignored the evidence presented by respondents
during preliminary investigation.

The records show that a prima facie case for trademark infringement and false designation of origin
exists against petitioners. Section 155 of the IP Code enumerates the instances when infringement
1âwphi1

is committed, viz.:

Sec. 155. Remedies; Infringement. - Any person who shall, without the consent of the owner of the
registered mark:

15 5 .1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof in connection with the sale, offering for
sale, distribution, advertising of any goods or services including other preparatory steps necessary to
carry out the sale of any goods or services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature
thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints,
packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall
be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth:
Provided, That the infringement takes place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of whether there is actual sale of goods or
services using the infringing material.

The essential element of infringement is that the infringing mark is likely to cause confusion. In this
47

case, the complaint-affidavit for the Davidoff infringement case alleged confusing similarity between
the cigarette packs of the authentic Davidoff cigarette and the sample Dageta cigarette pack seized
during the search of FMC's premises. Respondents submitted samples of the Davidoff and Dageta
cigarette packs during the preliminary investigation. They noted the following similarities:
48

Davidoff (Exhibit 1) Dageta (Exhibit 2)

Octagonal designed pack Octagonal designed pack ·
Black and red covering Black and red covering
Silver coloring of the tear tape and Silver coloring of the tear tape and
printing printing
 "Made in Germany by Reemtsman
under license of Davidoff & CIE SA,
Geneva"
Manufacturing Code imprinted on the
base of the pack
Writing at the back says: "These
carefully selected tobaccos have
been skillfully blended to assure your
pleasure" with the signature of Zino
Davidoff
"Made m Germany under license of
DAGETA & Tobacco LT"
Manufacturing Code imprinted on the
base of the pack
Writing at the back says: "These
specifically selected tobaccos have
been professionally blended to ensure
highest quality" with Chinese letters
underneath the name Dageta

Both Prosecutor Macabulos and Secretary Gonzalez disregarded the foregoing evidence of
respondents and confined their resolutions on the finding that there is an obvious difference between
the names "Davidoff' and "Dageta." Petitioners likewise rely on this finding and did not bother to
refute or explain the alleged similarities in the packaging of Davidoff and Dageta cigarettes. While we
agree that no confusion is created insofar as the names "Davidoff' and "Dageta" are concerned, we
cannot say the same with respect to the cigarettes' packaging. Indeed there might be differences
when the two are compared. We have, in previous cases, noted that defendants in cases of
infringement do not normally copy but only make colorable changes. The most successful form of
copying is to employ enough points of similarity to confuse the public, with enough points of
difference to confuse the courts. 49

Similarly, in their Complaint-Affidavit in the JTI infringement case, respondents aver that JTI is the
registered owner of the Mild Seven and Mild

Seven Lights trademarks; and that FMC manufactures cigarettes deceivingly or confusingly similar
to, or almost the same as, the registered marks of JTJ. They asserted that FMC is not authorized to
manufacture, pack, distribute or otherwise deal in products using JTI' s trademarks. Respondents
also submitted authentic Mild Seven and Mild Seven Lights cigarettes and samples of the cigarettes
taken from FMC's premises. 50

When Secretary Gonzalez dismissed respondents' complaint, he made a factual determination that
no Mild Seven and Mild Seven Lights were actually seized from FMC's premises. He cited
Prosecutor Macabulos' observation that the Joint Affidavit of Arrest/Seizure dated August 6, 2004
never mentioned the foregoing cigarettes as among the items seized. The CA, on the other hand,
reversed the dismissal of the complaint and declared that the issue of whether or not there was an
actual seizure of Mild Seven and Mild Seven Lights during the raid is evidentiary in character.

We concur with the CA. The validity and merits of a party's defense or accusation, as well as the
admissibility of testimonies and evidence, are better ventilated during trial proper than at the
preliminary investigation level. Further, the presence or absence of the elements of the crime is
51

evidentiary in nature and a matter of defense that may be passed upon only after a full-blown trial on
the merits.52

In Metropolitan Bank & Trust Co. v. Gonzales, we ruled that:

53

x x x [T]he abuse of discretion is patent in the act of the Secretary of Justice holding that the
contractual relationship forged by the parties was a simple loan, for in so doing, the Secretary of
Justice assumed the function of the trial judge of calibrating the evidence on record, done only after
a full-blown trial on the merits. The fact of existence or non-existence of a trust receipt transaction is
evidentiary in nature, the veracity of which can best be passed upon after trial on the merits, for it is
virtually impossible to ascertain the real nature of the transaction involved based solely on the self-
serving allegations contained in the opposing parties' pleadings. Clearly, the Secretary of Justice is
not in a competent position to pass judgment on substantive matters. The bases of a part[ie]'s
accusation and defenses are better ventilated at the trial proper than at the preliminary
investigation. (Emphasis supplied.)
54

In this case, Secretary Gonzalez found no probable cause against petitioners for infringement of the
JTI trademarks based on his conclusion that no fake Mild Seven and Mild Seven Lights were seized
from FMC's premises during the raid. He already passed upon as authentic and credible the Joint
Affidavit of Arrest/Seizure presented by petitioners which did not list Mild Seven and Mild Seven
Lights cigarettes as among those items seized during the raid. In so doing, Secretary Gonzalez
assumed the function of a trial judge, determining and weighing the evidence submitted by the
parties.

Meanwhile, the Complaint-Affidavit in the JTI infringement case shows that, more likely than not,
petitioners have committed the offense charged. FMC, alleged to be without authority to deal with
JTI products, is claimed to have been manufacturing cigarettes that have almost the same
appearance as JTI' s Mild Seven and Mild Seven Lights cigarettes.

As to the crime of False Designation of Origin, Section 169 of the IP Code provides:

Sec. 169. False Designations of Origin; False Description or Representation. -

169 .1. Any person who, on or in connection with any goods or services, or any container for goods,
uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false or misleading representation of
fact, which:

(a) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to the origin, sponsorship, or approval of his or
her goods, services, or commercial activities by another person; or

(b) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or

geographic origin of his or her or another person's goods, services, or commercial activities, shall be
liable to a civil action for damages and injunction provided in Sections 156 and 157 of this Act by any
person who believes that he or she is or is likely to be damaged by such act.

xxx

Respondents alleged in their Complaint-Affidavit that petitioners illegally manufactured and/or stored
cigarettes bearing the "DAGETA" label with an indication that these cigarettes were made in
Germany even if they were actually processed, manufactured and packed in the premises of FMC.
To support their claim, respondents submitted samples and attached a copy of the receipt/inventory
of the items seized during the August 4, 2004 raid. These included cigarettes bearing the infringing
DAGETA trademark and various machineries, receptacles, boxes and other paraphernalia used in
the manufacturing and packing of the infringing products. 55

Petitioners, for their part, disputed respondents' claim and maintained that the items seized from
their warehouse were genuine Dageta and Dageta International cigarettes imported from Germany.
In dismissing the charge,
Secretary Gonzalez ruled that respondents failed to establish the falsity of the claim indicated in the
cigarettes' labels that they were made in Gennany without providing the factual or legal basis for his
conclusion. He also brushed aside the allegations that (1) machines intended for manufacturing
cigarettes and (2) cigarettes' bearing the label "Made in Germany" were found and seized from
FMC's warehouse in the Philippines. To our mind, however, these circumstances are enough to
excite the belief that indeed petitioners were manufacturing cigarettes in their warehouse here in the
Philippines but misrepresenting the cigarettes' origin to be Germany. The CA, therefore, did not err in
reversing the Resolution of the Secretary of Justice.

In fine, we see no compelling reason to disturb the ruling of the CA finding probable cause against
petitioners for trademark infringement and false designation of origin.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated March 31, 2011 and
Resolution dated July 5, 2011 of the Court of Appeals in CA-G.R. SP No. 94587
are AFFIRMED. The Provincial Prosecutor of Pampanga is thus DIRECTED to file Informations
against petitioners for violations of:

(a) Section 155 (Infringement), in relation to Section 170 of the IP Code in LS. No. OCPSF-04-H-
2047;

(b) Section 169 (False Designation of Origin), in relation to Section 170 of the IP Code in LS. No.
OCPSF-04-H-2048; and

(c) Section 155 (Infringment), in relation to Section 170 of the IP Code in LS. No. OCPSF-04-H-
2226.

SO ORDERED.

EN BANC

G.R. No. 205698, July 31, 2018

HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG FUND, Petitioner, v. CHRISTINA

SAGUN, Respondent

[G.R. No. 205780]

DEPARTMENT OF JUSTICE, REP. BY SEC. LEILA DE LIMA, STATE PROSECUTOR THEODORE M.

VILLANUEVA, AND PROSECUTOR GENERAL CLARO A. ARELLANO, AND THE NATIONAL BUREAU OF
INVESTIGATION (NBI), Petitioners, v. CHRISTINA SAGUN, Respondent

[G.R. No. 208744]

 DEPARTMENT OF JUSTICE, Petitioner, v. DELFIN S. LEE, Respondent

[G.R. No. 209424]

HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. GLOBE ASIATIQUE REALTY HOLDINGS
CORPORATION, DELFIN S. LEE, IN HIS CAPACITY AS THE PRESIDENT OF THE CORPORATION,
AND TESSIE G. WANG, Respondents

[G.R. No. 209446]

PEOPLE OF THE PHILIPPINES, Petitioner, v. ALEX M. ALVAREZ, Respondent

[G.R. No. 209489]

HOME DEVELOPMENT MUTUAL FUND, Petitioner, v. ATTY. ALEX M. ALVAREZ, Respondent

[G.R. No. 209852]

HOME DEVELOPMENT MUTUAL FUND, (HDMF), Petitioner, v. DELFIN S. LEE, Respondent

[G.R. No. 210095]

DEPARTMENT OF JUSTICE, Petitioner, v. DELFIN S. LEE, Respondent

[G.R. No. 210143]

PEOPLE OF THE PHILIPPINES PETITIONER, VS. DELFIN S. LEE, Respondent

[G.R. No. 228452]

HOME DEVELOPMENT MUTUAL FUND (HDMF), Petitioner, v. DEXTER L. LEE, Respondent

[G.R. No. 228730]

PEOPLE OF THE PHILIPPINES, Petitioner, v. DEXTER L. LEE, Respondent

[G.R. No. 230680]

CRISTINA SALAGAN, Petitioner, v. PEOPLE OF THE PHILIPPINES AND HOME DEVELOPMENT

MUTUAL FUND (HDMF), Respondents.

DECISION

BERSAMIN, J.:

We hereby consider and resolve the following consolidated appeals by petition for review
on certiorari,1namely:

(1) G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452 and 228730, whereby
petitioners Department of Justice (DOJ), the People of the Philippines and the Home Development Mutual
Fund (HDMF) assail the decisions2 of the Court of Appeals (CA): (i) setting aside the August 10,
2011 Review Resolution of the DOJ insofar as Christina Sagun (Sagun) is concerned; and (ii) annulling the
May 22, 2012 and August 22, 2012 resolutions of the Regional Trial Court, Branch 42, in San Fernando City,
Pampanga (Pampanga RTC), and quashing the warrants of arrest issued against Delfin Lee, Dexter Lee
(Dexter), and Atty. Alex Alvarez (Atty. Alvarez) for lack of probable cause;

(2) G.R. No. 230680, whereby petitioner Cristina Salagan assails the decision of the CA dismissing her
petition for certiorari and upholding the resolutions dated May 22, 2012 and January 29, 2014 of the
Pampanga RTC insofar as finding probable cause for the crime of syndicated estafa and the issuance of a
warrant of arrest against her were concerned;
(3) G.R. Nos. 208744 and 210095, whereby the DOJ challenges the resolutions of the CA dismissing its
petition for certiorari for being filed out of time;3 and

(4) G.R. No. 209424, whereby HDMF assails the decision promulgated on October 7, 2013, 4 whereby the
CA found no grave abuse of discretion on the part of the Regional Trial Court, Branch 58, in Makati City
(Makati RTC) in issuing its January 31, 2012 final resolution granting the motion for summary judgment of
Globe Asiatique Realty Holdings, Corp. (Globe Asiatique) and Delfin Lee in Civil Case No. 10-1120
entitled Globe Asiatique Realty Holdings Corporation and Delfin Lee, in his capacity as President of the
Corportion v. Home Development Mutual Fund (HDMF) or Pag-IBIG Fund, its Board of Trustees and Emma
Linda Faria, Officer-in-Charge.

Salient Factual Antecedents

In 2008, Globe Asiatique, through its president Delfin Lee, entered into a Window I-Contract to Sell (CTS)
Real Estate Mortgage (REM) with Buy-back Guaranty take out mechanism with the HDMF, also known as the
Pag-Ibig Fund, for its Xevera Bacolor Project in Pampanga. Globe Asiatique and HDMF also executed various
Funding Commitment Agreements (FCAs) and Memoranda of Agreement (MOAs). 5

Under the FCAs, Delfin Lee warranted that the loan applicants that Globe Asiatique would allow to pre-
process, and whose housing loans it would approve, were existing buyers of its real estate and qualified to
avail themselves of loans from HDMF under the Pag-Ibig Fund; that all documents submitted to the HDMF in
behalf of the applicants, inclusive of the individual titles and the corresponding Deeds of Assignment, were
valid, binding and enforceable; that any person or agent employed by Globe Asiatique or allowed to transact
or do business in its behalf had not committed any act of misrepresentation; and that in the event of a
default of the three-month payment on the amortizations by said members or any breach of warranties,
Globe Asiatique would buy back the CTS/REM accounts during the first two years of the loan. 6

The parties further agreed that Globe Asiatique would collect the monthly amortizations on the loans
obtained by its buyers in the first two years of the loan agreements and remit the amounts collected to
HDMF through a Collection Servicing Agreement (CSA). In this regard, Delfin Lee undertook to maintain at
least 90% Performing Accounts Ratio (PAR) under the CSA.7

On June 10, 2008, Delfin Lee proposed the piloting of a Special Other Working Group (OWG) Membership
Program for its Xevera Bacolor Project while the FCA was in effect. The OWG Membership Program would
comprise of HDMF members who were not formally employed but derived income from non-formal sources
(e.g., practicing professionals, self-employed members, Overseas Filipino Workers (OFWs), and
entrepreneurs). Delfin Lee offered to extend the buy-back guarantee from two to five years to bolster his
position that the project was viable. HDMF eventually entered into another agreement for this purpose. 8

Corollary to the foregoing, the parties entered into a second FCA worth P200,000,000.00. Globe Asiatique
likewise undertook that the PAR for all of its projects would be increased to at least 95%; that the buy-back
guaranty for all accounts taken out from the Xevera Bacolor Project would be increased to five years; that it
would assign all its housing loan proceeds from its other projects to HDMF to cover any unpaid obligations
from the Xevera Project; and that the OWG borrowers, to be eligible for Pag-Ibig Membership, would be
required to present their Income Tax Returns (ITRs) and affidavits of income. 9

On July 13, 2009, the parties executed a MOA granting Globe Asiatique an additional P5,000,000,000.00
funding commitment line for its Xevera Projects in Pampanga on the condition that Globe Asiatique would
maintain a 95% PAR, and that the housing loan take-outs would be covered by a buy-back guaranty of five
years.10 Section 9 of the MOA expressly stated, however, that the MOA "supersedes, amends and modifies
provisions of all other previous and existing Agreements that are Inconsistent hereto." 11

More FCAs were executed between the parties. According to HDMF, the aggregate amount of
P7,007,806,000.00 was released to Globe Asiatique in a span of two years from 2008 to September 24,
2010, representing a total of 9,951 accounts. 12

In the course of its regular validation of buyers' membership eligibilities for taking out loans for the Xevera
Project, HDMF allegedly discovered some fraudulent transactions and false representations purportedly
committed by Globe Asiatique, its owners, officers, directors, employees, and agents/representatives, in
conspiracy with HDMF employees. HDMF invited the attention of Delfin Lee regarding some 351 buyers who
surrendered or withdrew their loans and were no longer interested in pursuing the same, and requested
Globe Asiatique to validate the 351 buyers. Delfin Lee replied that Globe Asiatique was actually monitoring
about 1,000 suspicious buyers' accounts. Subsequently, HDMF ostensibly found out about an additional 350
buyers who either denied knowledge of having availed of loans or manifested their intention to terminate
their account.13

As a result, HDMF revoked the authority of Globe Asiatique under the FCA; suspended all take-outs for new
housing loans; required the buyback of the 701 fraudulent accounts; and cancelled the release of funds to
Globe Asiatique in August 2010.

About a month later, Globe Asiatique discontinued remitting the monthly amortization collections from all
borrowers of Xevera.

Finally, HDMF terminated the CSA with Globe Asiatique on August 31, 2010. 14

Meanwhile, HDMF continued its post take-out validation of the borrowers, and discovered that at least 644
supposed borrowers under the OWG Membership Program who were processed and approved by Globe
Asiatique for the take-out by HDMF were not aware of the loans they had supposedly signed in relation to
the Xevera Project; and assuming they were aware of the loan agreements, they had merely signed the
same in consideration of money given to them by Globe Asiatique; that some borrowers were neither
members of HDMF nor qualified to take out a housing loan from HDMF because they had insufficient or no
income at all or they did not have the minimum number of contributions in HDMF; and that some of the
borrowers did not live in the units they purchased.15

HDMF alleged that at least 805 borrowers could not be located or were unknown in the addresses they had
provided in the loan agreements, or had indicated non-existent addresses therein; and that it incurred
damages totalling P1.04 billion covering the loans of 644 fraudulent and 805 fake borrowers attributed to
the fraudulent and criminal misrepresentations of Delfin Lee and Globe Asiatique's officials and employees. 16

The Criminal Charges

Upon the recommendation of the National Bureau of Investigation (NBI), the DOJ conducted its preliminary
investigation against Globe Asiatique, particularly its officers, namely: Delfin S. Lee, Dexter L. Lee, Ramon
Palma Gil, Cristina Salagan, Lerma Vitug, Tintin Fonclara, Geraldine Fonclara, Revelyn Reyes, Atty. Rod
Macaspac, Marvin Arevalo, Joan Borbon, Christian Cruz, Rodolfo Malabanan, Nannet Haguiling, John Tungol
and Atty. Alex Alvarez on the strength of the complaint-affidavit dated October 29, 2010 filed by Emma
Linda B. Faria, then the officer-in-charge (OIC) of the HDMF. This first complaint alleged the commission of
the crime of syndicated estafa constituting economic sabotage, as defined and penalized under Article
315(2)(a) of the Revised Penal Code, in relation to Presidential Decree No. 1689 (P.D. No. 1689). 17

The DOJ formed a panel of prosecutors to investigate the complaint.

On December 10, 2010, the NBI Anti-Graft Division recommended the filing of a second complaint for
syndicated estafa constituting economic sabotage under P.D. No. 1689, in relation to Article 315(2) of
the Revised Penal Code against Delfin Lee and the others. This second complaint was precipitated by the
complaints of supposed Globe Asiatique clients such as Evelyn Niebres, Catherine Bacani and Ronald San
Nicolas, who were victims of double sale perpetrated by Globe Asiatique. 18

Also, HDMF brought a complaint against Globe Asiatique and its officers for the fraudulent take-out of
housing loans for bogus buyers.

Subsequently, the DOJ formed yet another panel of prosecutors to conduct another preliminary
investigation.19

Upon learning of the filing of the second case in the DOJ, Delfin Lee filed a petition for the suspension of
proceedings pending the outcome of the civil action for specific performance that he and Globe Asiatique had
commenced in the Makati RTC, contending therein that the issue in the civil case constituted a prejudicial
question vis-a-vis the second DOJ case.

On February 21, 2011, the DOJ panel of prosecutors issued an Omnibus Order denying Delfin Lee's prayer
for suspension of proceedings.

After Delfin Lee's motion for reconsideration was denied on July 5, 2011, he filed his counter-affidavit ad
cautelam in the DOJ.20
On August 10, 2011, Prosecutor General Claro A. Arellano approved the Review Resolution of Senior Deputy
State Prosecutor Theodore M. Villanueva, the Chairman of the DOJ's Task Force on Securities and Business
Scam (SDSP Villanueva) pertaining to the first criminal complaint. 21 It is noted that the investigating
prosecutors of the DOJ's Task Force on Securities and Business Scam had initially recommended the filing of
charges for the crime of estafa defined and penalized under paragraph 2(a) of Article 315 of the Revised
Penal Code, in relation to paragraph 2, Section 1 of PD No. 1689, against Delfin Lee, Sagun, and Cristina
Salagan (Salagan). However, SDSP Villanueva recommended in the Review Resolution the inclusion of Atty.
Alvarez and Dexter Lee in the estafa charge, thereby charging syndicated estafa, with no bail
recommended.22

Consequently, Delfin Lee filed an amended petition on August 25, 2011 to enjoin the DOJ from filing the
information for syndicated estafa in relation to the first DOJ case.23

On September 15, 2011, Sagun filed in the CA her petition for certiorari and prohibition with prayer for the
issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction to assail the August
10, 2011 Review Resolution of the DOJ (C.A.-G.R. SP No. 121346).24

On his part, Atty. Alvarez resorted to his own petition for review on October 3, 2011 of the same August 10,
2011 Review Resolution in the DOJ. However, on November 14, 2011, he withdrew his petition following his
filing of a petition in the Manila RTC on October 10, 2011 assailing the same August 10, 2011 Review
Resolution. He also filed a petition for certiorari with the CA on November 15, 2011 to enjoin the DOJ from
tiling the information in the first syndicated estafa case, but he subsequently withdrew the petition and filed
on the same day a petition for injunction and prohibition in the Caloocan City RTC, Branch 125, to enjoin the
DOJ from filing the information in the first syndicated estafa case and from conducting the preliminary
investigation in the second case.25

Proceedings in the Pasig RTC

Prior to the DOJ's issuance of its August 10, 2011 Review Resolution, Delfin Lee initiated his action for
injunction on July 28, 2011 in the Pasig RTC to enjoin the DOJ from proceeding with the second DOJ case,
and reiterated therein that the civil case pending in the Makati RTC constituted a prejudicial question vis-a-
vis the second DOJ case. The case was docketed as Civil Case No. 73115 entitled Delfin S. Lee v.
Department of Justice.

The Pasig RTC, then presided by Judge Rolando Mislang, granted Delfin Lee's prayer for the issuance of the
TROs on August 16, 2011, and admitted the amended petition on August 26, 2011. 26

The Pasig RTC thereafter issued the writ of preliminary injunction under both the original and the an1ended
petitions on September 5, 2011.27

Aggrieved, the DOJ filed a petition for certiorari on October 6, 2011 (C.A.-G.R. SP No. 121594), alleging that
Judge Mislang had committed grave abuse of discretion in issuing the writ of preliminary injunction enjoining
the filing of the information for syndicated estafa with respect to the first case and from proceeding with the
preliminary investigation in the second case on the ground of the existence of a prejudicial question. 28

On April 16, 2012, the CA granted the DOJ's petition for certiorari in C.A.-G.R. SP No. 121594, and ruled
that the facts and issues in the civil case pending in the Makati RTC were not determinative of the guilt or
innocence of Delfin Lee in the cases filed in the DOJ; hence, it annulled and set aside the writ of preliminary
injunction issued by Judge Mislang.29

The adverse ruling in C.A.-G.R. SP No. 121594 was appealed by petition for review on certiorari. On July 4,
2012, the Court dismissed the appeal because of Delfin Lee's failure to show any reversible error on the part
of the CA in issuing the assailed decision. The dismissal became final and executory. 30

Much later on, Delfin Lee learned of the third and fourth criminal complaints filed in the DOJ. Again, he
sought the issuance of a TRO by the Pasig RTC.

On March 21, 2013, Judge Mislang issued the second TRO enjoining the preliminary investigation of the
second, third and fourth criminal complaints.31

On April 10, 2013, Judge Mislang issued the writ of preliminary injunction in Civil Case No. 73115 enjoining
the conduct of the preliminary investigation in the second, third and fourth criminal complaints. 32

Consequently, the DOJ filed another petition for certiorari, docketed as C.A.-G.R. SP No. 130409, to annul
the writ of preliminary injunction issued on April 10, 2013 by the Pasig RTC.

Proceedings in the Pampanga RTC

With the lifting of the first writ of preliminary injunction issued by the Pasig RTC, the DOJ filed a criminal
case for syndicated estafa against Delfin Lee, Dexter Lee, Christina Sagun (Sagun), Cristina Salagan
(Salagan), and Atty. Alex Alvarez (Atty. Alvarez) on April 30, 2012 in the Pampanga RTC. The case was
docketed as Criminal Case No. 18480 entitled People of the Philippines v. Delfin Lee, Dexter L. Lee, Christina
Sagun, Cristina Salagan, and Atty. Alex Alvarez.33

The information in Criminal Case No. 18480 reads:

That sometime during the period from 10 June 2008 to 24 September 2010, or on dates prior and
subsequent thereto, in the City of San Fernando, Pampanga, and within the jurisdiction of this Honorable
Court, the above-named accused DELFIN S. LEE, DEXTER L. LEE, CHRISTINA SAGUN[,] CRISTINA SALAGAN
and ATTY. ALEX ALVAREZ, acting as a syndicate formed with the intention of carrying out the unlawful or
illegal act, transaction, enterprise or scheme of soliciting funds from the general public, each performing a
particular act in furtherance of the common design, by way of take out on housing loans of supposed Pag-
IBIG fund members through the use of fictitious buyers and/or "special buyers" conspiring, confederating
and mutually helping one another, by means of false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of fraud, did then and there wilfully, unlawfully and feloniously defraud
the private complainant HOME DEVELOPMENT MUTUAL FUND, otherwise known as the Pag-IBIG Fund, in the
following manner, to wit: accused Delfin S. Lee, being the president and chief executive officer of Globe
Asiatique Realty Holdings Corporation (GA), a domestic corporation engaged in real estate development, did
then and there willfully, unlawfully and knowingly enter into funding commitment agreements and other
transactions with the private complainant, wherein said accused Delfin S. Lee made false and fraudulent
representations to the latter that GA has interested buyers in its Xevera projects in Bacolor and Mabalacat,
Pampanga when, in truth and in fact, said accused knew fully well that the corporation does not have such
buyers, as in fact the said corporation, through accused Delfin S. Lee, Dexter L. Lee, Christina Sagun,
Cristina Salagan and Atty. Alex Alvarez, in conspiracy with one another, submitted names of fictitious buyers
and documents to Pag-IBIG Fund as housing loan applicants/buyers of GA's Xevera projects in order to
obtain, as in fact the said corporation obtained, through accused Delfin S. Lee, fund releases from HDMF by
way of housing loan take-out of the said fictitious buyers. In addition, the said corporation, through accused
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex Alvarez, has also engaged in a
"special buyers" scheme whereby it recruited persons who does not have any intention to buy its housing
units in Xevera but, in exchange for a fee, said "special buyers" lent their names and Pag-IBIG membership
to GA, so that the said corporation could use, as in fact it has used, the names and Pag-IBIG membership of
the said "special buyers" in obtaining fund releases from HDMF, as the said corporation, through accused
Delfin S. Lee, had in fact obtained fund releases from HDMF, by way of take-out of the supposed housing
loans of the "special buyers", and by reason of the aforesaid false and fraudulent representations of accused
Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex Alvarez, HDMF was induced to
release, through several funding commitment agreements, to Globe Asiatique Realty Holdings Corporation,
through accused Delfin S. Lee, the total amount of P6,653,546,000.00, more or less, and upon receipt of the
aforesaid amount, the above-named accused did then and there willfully, unlawfully and feloniously convert,
misappropriate and misapply the same, and despite repeated demands, the above-named accused failed
and refused to pay the same, to the damage and prejudice of the private complainant in the aforesaid
amount.

As to the element of deceit, it was found that the documents submitted by GA concerning the existence and
qualifications of its buyers are spurious and/or questionable. It was uncovered that at least 351 of the
supposed buyers have already surrendered or withdrew their loans and/or are no longer interested in
pursuing their loans, while the alleged buyers for additional 350 Xevera accounts have either denied availing
of the loans or expressed their intention to cancel their respective accounts. Afterwards, documents
obtained by HDMF through special audit conducted on the Xevera Projects disclose that out of the 8,230
loans taken out by Pag-IBIG, only 39% of the borrowers belong to the Other Working Group (OWG)
category. On the other hand, out of the 10% of the OWG surveyed/audited, only 1.85% are actually living in
the units they purchased, whereas, 83.38% of the acquired units remain unoccupied; 7.69% of the units are
closed, 6.15% are being occupied by third parties; and lastly, 0.92% of the units are yet to be constructed.
The same documents likewise show that: (a) from a random examination of the units taken out by Pag-IBIG
and which are being occupied by third parties, 16 units are being occupied by in-house buyers - two of
whom have fully paid their obligations with GA; 3 units were leased out by non borrowers; 1 unit is being
occupied by a replacement buyer; and 82% of the borrowers of the units have failed to submit their
respective Income Tax Returns (ITR) which is a mandatory requirement for the approval of their loan
applications, and (b) as a result of the post take-out validation conducted by HDMF, it was found that 644
borrowers endorsed by GA are not genuine buyers of Xevera homes while 802 are nowhere to be found; 3
buyers are already deceased; and 275 were not around during the visit, hence, establishing that all of them
are fictitious buyers.

In connection with the "special buyers scheme," it was established that the people engaged as such have no
intention of buying housing units from GA, but merely agreed to the same after GA's agents sought them
out for a fee of P5,000.00. After being paid such fee, the aforementioned "special buyers" agreed to apply
for membership with Pag-IBIG, on the condition that it is GA that pays for their 24 months installments, so
that they can be qualified to apply for a Pag-IBIG housing loan. Thereafter, these "special buyers" are made
to execute loan and other supporting documents, which are then submitted to HDMF for take-out of their
housing loans for the Xevera projects. After take-out, GA pays the monthly amortizations of these "special
buyers" to Pag-IBIG, using the payment made to it by Pag-IBIG on the housing loan of GA's Xevera project
buyers. In this wise, GA's Performing Accounts Ration (PAR) reached as high as 99.97%. However, when
HDMF stopped fund releases to GA by way of housing loan take-outs of its buyers, or sometime August
2010, GA started to fail in remitting to HDMF Pampanga Branch office the monthly housing loan
amortizations of its buyers of Xevera project. Thus, GA's almost 100% monthly collection/remittance rate
dropped to 0% or no remittance at all when HDMF stopped its fund releases to GA, thereby establishing that
the monthly amortizations of its borrowers were being paid by GA from the funds released by HDMF on the
housing loans of its Xevera housing project borrowers.

That in carrying out the aforesaid conspiracy, accused Christina Sagun, head of the documentation
department of Globe Asiatique Realty and Holdings Corp., did then and there unlawfully, feloniously and
knowingly process and approve the housing loan applications of the said fictitious and "special buyers" of
GA, in clear violation of the terms of conditions of the agreements entered into between HDMF and GA;
accused Dexter L. Lee, did then and there, unlawfully, feloniously and knowingly order employees of GA to
find and recruit "special buyers," and in fact found such special buyers, in accordance with the
aforementioned illegal scheme, and in fact, is a co-signatory of the checks issued by GA in favor of the said
"special buyers;" accused Atty. Alex Alvarez, did then and there unlawfully, feloniously and knowingly
notarize crucial pieces of documents, consisting, among others, of the buyer's affidavit of income,
promissory note, and developer's affidavit (by Ms. Cristina Sagun) alleging compliance with the conditions
set by HDMF, all of which are essential for the processing and approval of the purported transaction; and
accused CRISTINA SALAGAN, being the head of GA's accounting department, did then and there unlawfully,
feloniously and knowingly allow the release of the questionable amounts of P5,000.00 as payment to every
fake/fictitious and/or "special buyer" applicant of GA despite knowledge of its unlawful and illegal nature, to
the damage and prejudice of HDMF and/or its members.

CONTRARY TO LAW.34
In due course, the respondents separately moved to quash the information and to seek judicial
determination of probable cause.35

On May 22, 2012, the Pampanga RTC found probable cause for syndicated estafa and for the issuance of
warrants of arrest, to wit:

PREMISES GIVEN, the Court orders the following:

I. Probable cause for the crime of ESTAFA (ARTICLE 315 [2] [a] of the Revised Penal Code, in relation to
Section 1 of P.D. 1689, as amended, is found against the Accused DELFIN S. LEE, DEXTER L. LEE,
CHRISTINA SAGUN, CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.

II. Issue Warrant of Arrest against DELFIN S. LEE, DEXTER L. LEE, CHRISTINA SAGUN, CRISTINA SALAGAN
and ATTY. ALEX ALVAREZ.

III. There is NO BAIL RECOMMENDED for each of DELFIN S. LEE, DEXTER L. LEE, CHRISTINA SAGUN,
CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.

The setting (sic) on May 23 and 24, 2010 is (sic) CANCELLED.

SO ORDERED.36
Upon notice of the resolution, Delfin Lee filed a Motion to Recall/Quash Warrant of Arrest and/or Hold in
Abeyance their Release to Law Enforcement Agencies Pending Resolution of this Motion.

On August 22, 2012, the Pampanga RTC denied Delfin Lee's Motion to Recall/Quash Warrant of Arrest
and/or Hold in Abeyance their Release to Law Enforcement Agencies Pending Resolution of this Motion.37

Delfin Lee, Dexter and Salagan moved to reconsider the August 22, 2012 resolution of the Pampanga RTC.

Without waiting for the resolution of the motion, Delfin Lee filed a petition for certiorari with prayer for the
issuance of a TRO and/or writ of preliminary injunction in the CA on November 26, 2012 to nullify the
resolutions of the Pampanga RTC dated May 22, 2012 and August 22, 2012 (C.A.-G.R. SP No. 127553).38

Meanwhile, Atty. Alvarez also filed a motion for reconsideration of the May 22, 2012 resolution, but the
Pampanga RTC denied the motion on August 22, 2012. Thereafter, he filed a petition for certiorari with the
CA to nullify and set aside the May 22, 2012 and August 22, 2012 resolutions of the Pampanga RTC. The
petition was docketed as C.A.-G.R. SP No. 127690.

Dexter filed his own petition for certiorari in the CA to question the May 22, 2012 and August 22, 2012
resolutions of the Pampanga RTC, Salagan likewise filed her own petition for certiorari in the CA alleging
grave abuse of discretion on the part respondent Judge of the Pampanga RTC in issuing the May 22, 2012
resolution denying her second motion to quash information with prayer to re-determine probable cause and
the January 29, 2014 resolution denying her motion for reconsideration.

The Civil Case

(Proceedings before the Makati RTC)

Globe Asiatique and Delfin Lee initiated the complaint for specific performance and damages against HDMF
on November 15, 2010. Docketed as Civil Case No. 10-1120,39 the case was assigned to Branch 58 of the
Makati RTC. Globe Asiatique and Delfin Lee thereby sought to compel HDMF to accept the proposed
replacements of the buyers/borrowers who had become delinquent in their amortizations, asserting that
HDMF's inaction to accept the replacements had forced Globe Asiatique to default on its obligations under
the MOA and FCAs.40

Globe Asiatique and Delfin Lee filed a Motion for Summary Judgment, which the Makati RTC, after due
proceedings, resolved on January 30, 2012, disposing thusly:
WHEREFORE, premises considered, a Summary Judgment is hereby rendered declaring that:

1. Plaintiff (sic) have proven their case by preponderance of evidence. As such, they are entitled to
specific performance and right to damages as prayed for in the Complaint, except that the exact
amount of damages will have to be determined during trial proper.

2. Pursuant to the provisions of their MOA amending the continuing FCAs and CSAs, defendant HDMF is
hereby ordered to comply faithfully and religiously with its obligation under the said contracts, including but
not limited to the release of loan take-out proceeds of those accounts whose Deed[s] of Assignment with
Special Power of Attorney have already been annotated in the corresponding Transfer Certificate of Title
covering the houses and lots purchased by the Pag IBIG member-borrowers from plaintiff GARHC as well as
the evaluation of the loan applications of those who underwent or will undergo plaintiff GARHC's loan
counselling and are qualified or PAG-IBIG FUND loans under the MOA and continuing FCAs and process the
approval thereof only if qualified, under the Window 1 Facility as provided for in the MOA and continuing
FCAs;

3. The unilateral cancellation by defendant HDMF of the continuing FCAs specifically the latest FCAs of
December 15, 2009, January 5 and March 17, 2010 and CSA dated 10 February 2009, is hereby SET
ASIDE[;]

4. Defendants are ordered to automatically off-set the balance of those listed in Annex "E" of the Motion for
Summary Judgment against the retention money, escrow money, funding commitment fees, loan takeout
proceeds and other receivables of plaintiff GARHC which are still in the control and possession of defendant
HDMF;

5. Defendants are ordered to accept the replacement-buyers listed in Annex "F" of the Motion for Summary
Judgment, which list is unopposed by defendants, without interest or penalty from the time of defendant
HDMF's cancellation of the Collection Servicing Agreement (CSA) resulting to the refusal to accept the same
up to the time that these replacement buyers are actually accepted by defendant HDMF;

6. Defendants are ordered to release the corresponding Transfer Certificate of Title[s] (TCTs) of those
accounts which are fully paid or subjected to automatic off-setting starting from the list in Annex "E" of the
Motion for Summary Judgment and thereafter from those listed in Annex "F" thereof and cause the
corresponding cancellation of the annotations in the titles thereof.

Let this case be set for the presentation of evidence on the exact amount of damages that plaintiffs are
entitled to on March 12, 2012 at 8:30 in the morning.

SO ORDERED.41
On December 11, 2012, the Makati RTC denied the motion for reconsideration of OIC Faria and Atty.
Berberabe filed through the Yorac Arroyo Chua Caedo and Coronal Law Firm (the Yorac Law Firm). The trial
court held that the Yorac Law Firm was not duly authorized to represent the HDMF; hence, it treated the
motion for reconsideration as a mere scrap of paper and opined that its filing did not toll the running of the
period to appeal. As to the HDMF, the Makati RTC, noting with approval the manifestation of Globe Asiatique
and Delfin Lee to the effect that the HDMF had not filed a motion for reconsideration or taken an appeal,
deemed the summary judgment final and executory as to the HDMF. 42

Aggrieved, the HDMF brought its petition for certiorari (C.A.-G.R. SP No. 128262).

Decisions of the CA

The CA promulgated the separate decisions now under review.

1.
C.A.-G.R. SP No. 130409
(DOJ petition assailing the April 10, 2013 writ of preliminary injunction issued by the Pasig RTC)

On June 18, 2013, the DOJ filed the intended petition for certiorari but inadvertently did not indicate therein
the proper docket number for the case thereby causing the assignment by the CA of a new docket number,
specifically C.A.-G.R. SP No. 130409. On June 26, 2013, the CA dismissed the DOJ's petition for certiorari in
C.A.-G.R. SP No. 130409 on the ground that it had not received a motion for extension of time to file the
petition.43

Meanwhile, on July 8, 2013, the CA issued its resolution in C.A.-G.R. SP No. 130404 denying the DOJ's
motion for extension for failure of the DOJ to file the intended petition for certiorari.

Realizing its error later on, the DOJ immediately filed a manifestation with motion to admit petition
for certiorari to clarify the mix-up and rectify its error. On August 14, 2013, the CA denied the DOJ's
manifestation with motion to admit petition for certiorari.

Hence, the DOJ filed a petition docketed as G.R. No. 208744 to assail the resolution promulgated on July 8,
2013 in C.A.-G.R. SP No. 130404.44 As to CA-G.R. SP No. 130409, the DOJ moved for reconsideration of the
CA's resolution dated June 26, 2013, but the motion was denied on November 11, 2013. 45

2.
C.A.-G.R. SP No. 128262
(HDMF Petition assailing the January 30, 2012 and December 11, 2012 resolutions of the Makati
RTC in Civil Case No. 10-1120)

On October 7, 2013, the CA promulgated its decision dismissing the HDMF petition in C.A.-G.R. SP No.
128262,46 to wit:
WHEREFORE, there being no grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of public respondent in rendering the assailed Resolution dated January 30, 2012 containing the
Summary Judgment and the Resolution dated December 11, 2012 denying HDMF, Faria and Atty.
Berberabe's Motion for Reconsideration, the instant petition is hereby DISMISSED.

SO ORDERED.
The CA opined that the HDMF had availed itself of the wrong remedy to assail the January 30, 2012
summary judgment and the December 11, 2012 resolution of the Makati RTC; and that the certioraripetition
did not further show that it had been filed under the authority of the Office of the Government Corporate
Counsel, or by a private law firm with the necessary pre-requisite conformity of the Government Corporate
Counsel and Commission on Audit.47

3.
C.A.-G.R. SP No. 121346
(Sagun Petition assailing the August 10, 2011 Review Resolution of the DOJ)

In C.A.-G.R. SP No. 121346, the CA opined that respondent Sagun's duties as the Documentation Head of
Globe Asiatique were ministerial in nature and did not require the employment of much discretion. As the
DOJ observed in its assailed Review Resolution, Sagun's functions were limited to the collation of the
documents submitted by the borrowers/buyers through Globe Asiatique's Marketing Department, and to
ensuring that such documents were complete and duly accomplished, and to the determination and
verification from the HDMF through the submission of Membership Status Verification whether the
borrowers/buyers were really HDMF members, or had updated contributions, or had no existing housing
loans, and were thus qualified to apply for housing loans. The CA conceded that any errors or oversights,
which could occur in the performance of Sagun's duties, should be attributed to her negligence, as
concluded in the Review Resolution.

While the DOJ asserted that the fraud could have been averted had Sagun not been negligent, the CA
explained that such negligence negated any intent to commit a crime; hence, Sagun could not have
committed the crime of estafa charged. Moreover, the documents Sagun had reviewed were forwarded to
the HDMF for evaluation and approval; hence, the HDMF had the opportunity and the ultimate prerogative
and discretion on the documents.

Accordingly, the CA disposed in its assailed decision promulgated on October 5, 2012 in C.A.-G.R. SP No.
121346,48viz.:
WHEREFORE, premises considered, the Petition for Certiorari and Prohibition is hereby PARTIALLY
GRANTED. Consequently, the subject Review Resolution dated August 10, 2011 issued by respondent DOJ
is SET ASIDE and DISMISSED as against petitioner Christina Sagun.

SO ORDERED.49
4.
C.A.-G.R. SP No. 127553, C.A.-G.R. SP No.127554, and C.A.-G.R. SP No. 127690
(respectively, the Delfin Lee Petition, Dexter Lee Petition and Alvarez Petition assailing the May
22, 2012 and August 22, 2012 resolutions of the Pampanga RTC)

On October 3, 2013, the CA promulgated its decision on the Alvarez petition (C.A.-G.R. SP No.
127690),50 ruling that there was not enough evidence to implicate Atty. Alvarez; that the RTC had merely
listed the documents submitted by the task force and had not conducted any evaluation of the evidence to
determine whether or not Alvarez had participated in the alleged grand scheme to defraud the HDMF; and
that the RTC had relied solely on the recommendation of the panel of prosecutors, which was insufficient
under prevailing jurisprudence. The disposition was as follows:
WHEREFORE, in view of the foregoing premises, the Petition for Certiorari and the Supplemental Petition
are PARTIALLY GRANTED and the assailed Resolutions dated May 22, 2012 and August 22, 2012 of the
Regional Trial Court, Branch 42 of San Fernando City, Pampanga in so far as petitioner ALEX M.
ALVAREZ is concerned are hereby annulled and set aside. Accordingly, the warrant of arrest issued against
him is hereby LIFTED, QUASHED/RECALLED.

Meantime, since the evidence do not support the finding of probable cause against petitioner ALEX M.
ALVAREZ, public respondent court is hereby enjoined from proceeding with Criminal Case No. 18480 as
against said petitioner only.

SO ORDERED.51
On November 7, 2013, the CA promulgated its decision on Delfin Lee's petition (C.A.-G.R. SP No.
127553),52 decreeing:
WHEREFORE, in view of the foregoing, the instant petition is hereby PARTIALLY GRANTED. The assailed
Resolutions dated May 22, 2012 and August 22, 2012 are hereby ANNULLED and SET ASIDE for the
issuance thereof was attended with grave abuse of discretion on the part of public respondent Hon. Ma.
Amifaith S. Fider-Reyes, in her capacity as the Presiding Judge of the San Fernando, Pampanga RTC -
Branch 42. Consequently, the Warrant of Arrest issued against petitioner Delfin S. Lee is hereby QUASHED,
RECALLED AND LIFTED. Afore-named public respondent judge is directed to CEASE and DESIST from
further proceeding with Criminal Case No. 18480 insofar as petitioner Delfin S. Lee is concerned.

Furthermore, all government agencies tasked in the enforcement of the said warrant of arrest including but
not limited to the Philippine National Police (PNP), the National Bureau of Investigation (NBI) and the Bureau
of Immigration (BI) are immediately ENJOINEDfrom implementing the same.

SO ORDERED.53
The CA observed that the RTC gravely abused its discretion because its conclusion on finding probable cause
to issue the arrest warrant was in the nature of speculation; that the RTC had merely relied on the
information, the Review Resolution and the six boxes of documentary evidence to find and conclude that a
huge amount of money had been transferred from the HDMF to Globe Asiatique through a complex scheme
that could only have been attained through the sustained action of people in concert to commit their
criminal intention; that such findings and conclusions were not based on hard facts and solid evidence as
required by jurisprudence; that the report did not mention how many perpetrators had conspired against the
HDMF; that the parts of Delfin Lee and his supposed cohorts in the supposed fraudulent acts committed
againstthe HDMF had not been particularly identified; that the conversion of the recommendation from the
filing of simple estafa to syndicated estafa had not been clearly explained in the Review Resolution; that the
RTC had simply adopted such findings without justifying how the charge could be for syndicated instead of
simple estafa; and that the RTC had also issued the resolution a day immediately after the six boxes of
documentary evidence had come to its knowledge as the trial court.

The CA debunked the HDMF's argument that Delfin Lee had defrauded it into releasing a considerable sum
of money to Globe Asiatique through a complex scheme involving fraudulent buyers. The CA noted that
the Deed of Assignment with Contract to Sell and Special Power of Attorney executed between Globe
Asiatique and the HDMF showed that the HDMF had been ultimately duty-bound to check the applications of
prospective borrowers and to approve the same; that, consequently, whatever damage the HDMF had
incurred could not be solely ascribed to Delfin Lee; that in fact the DOJ had also endorsed the Review
Resolution to the Ombudsman for the investigation of the HDMF officers for violation of Republic Act No.
3019; and that it was confusing that Delfin Lee had been charged separately of another crime instead of
being joined with the officers of the HDMF who had been referred to the Ombudsman for investigation.

On November 16, 2016, the CA promulgated its decision on Dexter's petition (C.A.-G.R. No. 127554),
declaring that the Pampanga RTC had erred in its determination of probable cause against him; 54 that the
Pampanga RTC had gravely abused its discretion when it based its assessment solely on the Review
Resolution of the panel of prosecutors, the information, and the six boxes of documents presented as
evidence by the Prosecution without making its independent assessment of the documents and other pieces
of evidence to validate the issuance of the arrest warrant issued against Dexter.

The CA disposed thusly:

ACCORDINGLY, on the foregoing reasons, the petition is PARTIALLY GRANTED. The assailed Resolutions
dated May 22, 2012 and August 22, 2012 of Branch 42 of Regional Trial Court of Pampanga City (sic)
are ANULLED and SET ASIDE. Thus, the Warrant of Arrest issued against petitioner Dexter L. Lee is
hereby QUASHED, RECALLED and LIFTED. Fwthermore, the Regional Trial Court, Branch 42 of San
Fernando, Pampanga is directed to CEASE and DESIST from further proceeding with Criminal Case No.
18480 insofar as petitioner Dexter L. Lee is concerned.

Moreover, all government agencies tasked in the enforcement of the Warrant of Arrest including but not
limited to the Philippine National Police, the National Bureau of Investigation and the Bureau of Immigration
are immediately ENJOINED from implementing the said Warrant.

SO ORDERED.55
5.
C.A.-G.R. SP No. 134573
(Salagan Petition assailing the May 22, 2012 and January 29, 2014 resolutions of the Pampanga
RTC)

Salagan claimed in C.A.-G.R. SP No. 134573 that there was no probable cause to charge her with the
crime of syndicated estafa in view of the decisions promulgated in C.A.-G.R. SP No. 121346, C.A.-G.R. SP
No. 127553, and C.A.-G.R. SP No. 127690 finding that no probable cause existed against Sagun, Delfin Lee
and Atty. Alvarez, respectively, for syndicated estafa.

The CA declared in C.A.-G.R. SP No. 134573, however, that the respondent Judge did not gravely abuse
her discretion in finding probable cause against Salagan, and upheld the validity of the information filed in
the Pampanga RTC against her; and that the warrant of arrest had been issued upon probable cause
personally determined by the judge.56 It ruled that the respondent Judge had properly denied Salagan's
second motion to quash the information with prayer to re-determine probable cause based on a supervening
event considering that Salagan had erroneously assumed that the separate decisions promulgated by the CA
were supervening events that justified the re-determination of probable cause. 57

The CA disposed on March 18, 2016 in C.A.-G.R. SP No. 134573:

WHEREFORE, in view of the foregoing, the Petition for Certiorari is DISMISSED. Accordingly, the
Resolution dated May 22, 2012 and Resolution dated January 29, 2014 of the San Fernando, Pampanga
RTC, Branch 42 are hereby AFFIRMED insofar as Accused Cristina Salagan is concerned.

SO ORDERED.58
Issues

We simplify the legal issues as follows:

(1) Whether or not the HDMF availed itself of the proper remedy to assail
the summary judgment rendered by the Makati RTC (G.R. No.
209424);
(2) Whether or not there was probable cause for the filing of the
information for syndicated estafa, and for the issuance of the warrants
of arrest against the respondents for that crime (G.R. Nos. 205698,
205780, 209446, 209489, 209852, 210143, 228452,
228730 and 230680); and
(3) Whether or not the conduct of a preliminary investigation could be
enjoined (G.R. Nos. 208744 and 210095).

On various dates, the Court issued TROs59 to enjoin the implementation and enforcement of the assailed CA
decisions and resolutions issued in C.A.-G.R. SP No. 121346, C.A.-G.R. SP No. 127553, C.A.-G.R. SP
No. 127554, and C.A.-G.R. SP No. 127690. Inasmuch as the warrants of arrest remained valid
nonetheless, Delfin Lee was arrested by virtue thereof,60 and was detained in the Pampanga Provincial Jail
since his arrest until this time.61 The other respondents have remained at large.

Ruling of the Court

We PARTIALLY GRANT the petitions in G.R. No. 205698, G.R. No. 205780, G.R. No. 209446, G.R. No.
209489, G.R. No. 209852, G.R. No. 210143, G.R. No. 228452, G.R. No. 228730 and G.R. No.
230680, and, accordingly, MODIFY the assailed decisions of the CA.

On the other hand, we GRANT the petitions in G.R. No. 209424, G.R. No. 208744, and G.R. No.
210095, and, accordingly, REVERSE the resolutions of the CA assailed therein.

1.
The January 30,2012 summary judgment was an interlocutory judgment; hence, the HDMF
correctly instituted a petition for certiorari instead of an appeal

The HDMF argues that it correctly instituted the special civil action for certiorari to assail the resolutions of
the Makati RTC dated January 30, 2012 and December 11, 2012 issued in Civil Case No. 10-1120; that the
Yorac Law Firm had lawful authority to represent the HDMF; and that the Makati RTC rendered the
questioned resolutions with grave abuse of discretion amounting to lack or excess of jurisdiction.
The HDMF's arguments are partly meritorious.

1.a.
The January 30, 2012 summary judgment was an interlocutory order

In Civil Case No. 10-1120, Globe Asiatique and Delfin Lee specifically averred separate causes of action
against the HDMF, including that for damages. Thus, they prayed for the following reliefs, to wit:
PRAYER

WHEREFORE, it is respectfully prayed that after due proceedings, a decision be rendered by the Honorable
Court in favor of the plaintiffs and against the defendants, ordering the following:

1. With respect to the First Cause of Action, for defendant PAG-IBIG to accept the replacement
of the buyer/borrowers as offered by plaintiff GARHC contained in a list hereto attached as
Annex "O" pursuant to the latter's exercise of this option under Section 3.7 of the latest
Funding Commitment Agreement in relation to the buyback provision under the
Memorandum of Agreement dated 13 July 2009;

2. With respect to the Second Cause of Action, for defendant PAG-IBIG FUND to release the
pending loan take-outs and amount of retention due plaintiff GARHC pursuant to the MOA
and latest FCA and for all defendants to jointly and solidarily pay plaintiff GARHC the sum of
Php6,562,500.00, representing interest and penalty payments;

3. With respect to the Third Cause of Action, for defendant PAG-IBIG FUND to honor the
provisions of its MOA the latest FCA and CSA, to set aside the cancellation of the FCA and
CSA, and restore plaintiff GARHC to its rights under the MOA, latest FCA and CSA;

4. With respect to the Fourth Cause of Action, for defendants to jointly and severally pay
plaintiff GARHC the sum of Php1 Million as and by way of attorney's fees, Php500,000.00 as
and by way of litigation expenses, and cost of suit; and

5. With respect to the Fifth Cause of Action, for defendants to pay exemplary damages in the
amount of Php500,000.00.

Plaintiffs pray for such other reliefs and remedies that the Honorable Court may deem just and equitable in
the premises.62
During the proceedings, Globe Asiatique and Delfin Lee filed the motion for summary judgment, stating the
reliefs prayed for, as follows:
PRAYER

WHEREFORE, it is respectfully prayed that after due notice and hearing, an Order be issued granting the
instant Motion for Summary Judgment and simultaneously therewith, to render the Summary Judgment
prayed for, declaring and ordering the following:

1. That plaintiffs have proven their case by preponderance of evidence and, therefore, are
entitled to specific perfonnance and right to damages as prayed for in the Complaint;

2. That defendants HDMF should faithfully and religiously comply with the pertinent provisions
of the FCAs and CSAs as amended by the MOA under the prevailing conditions prior to the
precipitate unilateral termination thereof by defendant HDMF, including but not limited to
the release of loan take-out proceeds of those accounts whose DOAs with SPAs have
already been annotated in the corresponding TCTs as well as the evaluation and approval of
the loan applications of those who underwent or will undergo plaintiff GARCH's loan
counselling and arc qualified for PAG-IBIG loans under the MOA and FCAs;

3. That defendant HDMF's unilateral termination of the MOA, FCAs and CSA be declared illegal
and be set aside;
 4. That defendants be ordered to automatically off-set the balance of those listed in Annex "E"
hereof composed of fully-paid buyer-borrowers against the retention money, escrow
money, funding commitment fees, loan take-out proceeds and other receivables of plaintiff
GARHC which are still in the control and possession of defendant HDMF;

5. That defendants be ordered to accept the replacement-buyers listed in Annex "F" hereof,
without interest or penalty from the time of defendant HDMF's refusal to accept the same
up to the time that these replacement buyers are actually accepted by defendant HDMF;

6. That defendants be ordered to release the corresponding Transfer Certificate of Title(s)

(TCTs) of those accounts which are fully paid or subjected to automatic off-setting starting
from the. list in Annex "e" of the Motion for Summary Judgment and thereafter from those
listed in Annex "F" thereof and cause the corresponding cancellation of the annotations in
the titles thereof, including that of complaint-intervenor Tessie G. Wang's titles;

Plaintiffs pray for such other relief. S and remedies that the Honorable Court may deem just and equitable in
the premises.63
Globe Asiatique and Delfin Lee did not include the claim for damages among the reliefs prayed for by their
motion for summary judgment.

Granting the motion tor summary judgment, the Makati RTC ultimately disposed:
WHEREFORE, premises considered, a Summary Judgment is hereby rendered declaring that:

1. Plaintiffs have proven their case by preponderance of evidence. As such, they are
entitled to specific performance and right to damages as prayed for in the
Complaint, except that the exact amount of damages will have to be determined
during trial proper.

xxxx

Let this case be set for the presentation of evidence on the exact amount of damages that
plaintiffs are entitled on March 12, 2012 at 8:30 in the morning.

SO ORDERED.64 (Bold underscoring supplied)

As the foregoing shows, the Makati RTC set the case for the presentation of evidence to establish the other
claims of Globe Asiatique and Delfin Lee stated in their complaint for specific performance, specifically those
pertaining to the fourth and fifth causes of action. The claims related to damages, which, being still essential
parts of the case, would still have to be established and adjudicated on their merits. Although the recovery
of the damages was dependent on the determination that the HDMF had breached its contract with Globe
Asiatique, it could not yet be said that the Makati RTC had fully disposed of the case through the summary
judgment considering that there were still other reliefs sought by Globe Asiatique and Delfin Lee yet to be
tried and determined either way. Under the circumstances, the summary judgment was, properly speaking,
but an interlocutory judgment of the Makati RTC.

In this connection, the rule on separate judgments - Section 5, Rule 36 of the Rules of Court - is relevant.
The rule requires the action to proceed as to the remaining but unresolved claims, to wit:
SEC. 5. Separate judgments. - When more than one claim for relief is presented in an action, the court, at
any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out
of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment
disposing of such claim. The judgment shall terminate the action with respect to the claim so
disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is
rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered. (Bold underscoring supplied for emphasis)
A partial summary judgment like that rendered on January 30, 2012 by the Makati RTC was in the category
of a separate judgment. Such judgment did not adjudicate dmnages, and still directed that further
proceedings be had in order to determine the damages to which Globe Asiatique and Delfin Lee could be
entitled. Section 4, Rule 35 of the Rules of Court thus came into operation. Section 4 states:
SEC. 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial is necessary the court at the hearing of
the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear without substantial
controversy, including the extent to which the amount of damages or other relief is not in controversy, and
directing such further proceedings in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts accordingly. (Bold underscoring
supplied for emphasis)
Worthy to emphasize is that the rendition of a summary judgment does not always result in the full
adjudication of all the issues raised in a case.65 In such event, a partial summary judgment is rendered in
the context of Section 4, supra. Clearly, such a partial summary judgment - because it does not put an end
to the action at law by declaring that the plaintiff either has or has not entitled himself to recover the
remedy he sues for - cannot be considered a final judgment. It remains to be an interlocutory judgment or
order, instead of a final judgment, and is not to be dealt with and resolved separately from the other
aspects of the case.

In Pahila-Garrido v. Tortogo,66 the distinctions between final and interlocutory orders were delineated thusly:
The distinction between a final order and an interlocutory order is well known. The first disposes of the
subject matter in its entirety or terminates a particular proceeding or action, leaving nothing more to be
done except to enforce by execution what the court has determined, but the latter does not completely
dispose of the case but leaves something else to be decided upon. An interlocutory order deals with
preliminary matters and the trial on the merits is yet to be held and the judgment rendered. The test to
ascertain whether or not an order or a judgment is interlocutory or final is: does the order or judgment
leave something to be done in the trial court with respect to the merits of the case? If it does, the order or
judgment is interlocutory; otherwise, it is final.
What was the proper recourse against the partial summary judgment?

Considering that the January 30, 2012 partial summary judgment was interlocutory, the remedy could not
be an appeal, for only a final judgment or order could be appealed. Section 1, Rule 41 of the Rules of
Court makes this clear enough by expressly forbidding an appeal from being taken from such interlocutory
judgment or order, to wit:
Section 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

xxxx

(f) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third party complaints, while the main case is pending, unless
the court allows an appeal therefrom; and

xxxx

In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil
action as provided in Rule 65.
Consequently, the interlocutory January 30, 2012 summary judgment could be assailed only
through certiorari under Rule 65 of the Rules of Court. Thus, the HDMF properly instituted the special civil
action for certiorari to assail and set aside the resolutions dated January 30, 2012 and December 11, 2012
of the Makati RTC.

1.b.
The Yorac Law Firm had no authority to file the HDMF's motion for reconsideration of the January
30, 2012 summary judgment rendered by the Makati RTC

The HDMF is a government-owned and -controlled corporation (GOCC) performing proprietary functions with
original charter or created by special law, specifically Presidential Decree (P.D.) No. 1752, amending P.D.
No. 1530.67 As a GOCC, the HDMF's legal matters are to be handled by the Office of the Government
Corporate Counsel (OGCC),68 save for some extraordinary or exceptional circumstances when it is allowed to
engage the services of private counsels, provided such engagement is with the written conformity of the
Solicitor General or the Government Corporate Counsel and the written concurrence of the Commission on
Audit (COA).69

In Phividec Industrial Authority v. Capitol Steel Corporation,70 the Court underscored that the best evidence
to prove the COA's concurrence with the engagement of a private lawyer or law firm was the written
concurrence from the COA itself, viz.:
Petitioners primarily rely on a certified true copy of an Indorsement issued by COA Regional Office No. 10 as
proof of written concurrence on the part of the COA. All that it contains is a second-hand claim that the COA
General Counsel had allegedly concurred in the retainer contract between PHIVIDEC and Atty. Adaza. The
written concurrence itself which may be the best evidence of the alleged concurrence was not presented. It
is also worth noting that the said Indorsement was dated 4 June 2002, or approximately two years after the
filing of the expropriation case by Atty. Adaza.
The records reveal that although the OGCC authorized the HDMF to engage the services of the Yorac Law
Firm, the HDMF did not sufficiently prove that the written concurrence of the COA had been obtained.

To substantiate its claim of the COA's concurrence with the engagement of the Yorac Law Firm's legal
services, the HDMF presented the certification dated January 10, 2013, 71viz.:
CERTIFICATION

This is to certify that the Commission on Audit (COA) has concurred in the Retainer Agreement entered into
by and between the Home Development Mutual Fund (HDMF) and Yorac, Arroyo, Chua, Caedo & Coronel
Law Firm, for the latter to provide legal services to the HDMF in connection with the cases filed by or against
Globe Asiatique Realty Holdings Corporation, Mr. Delfin S. Lee, its officers, employees and agents, and such
other cases that arose out of or in relation to the Globe Asiatique Realty Holdings Corporation issues.

This certification is issued to attest to the truth of the foregoing and for whatever legal purposes it may
serve.

10 January 2013

(signed)
ATTY. FIDELA M. TAN
Corporate Auditor
It is immediately discernible, however, that the certification was merely the attestation by Atty. Tan that
COA had concurred in the retainer agreement entered into by and between the HDMF and the Yorac Law
Firm. Such attestation did not establish the written concurrence of the COA on the engagement of the Yorac
Law Firm because it did not state that the copy was a correct copy of the original considering that no copy of
COA's written concurrence was actually attached to the January 10, 2013 certification. Also, it did not
thereby appear that Atty. Tan was the custodian of the records of COA. As the Makati RTC further observed,
the attestation had not been made under the official seal of COA but printed only on the joint letterhead of
the HDMF and COA, with the latter's address being indicated to be in Mandaluyong City when the COA's
office was actually located in Commonwealth Avenue, Quezon City. 72

Atty. Tan's attestation of the COA's purported concurrence had no evidentiary value due to its non-
conformity with the requirements of Section 24 and Section 25, Rule 132 of the Rules of Court for
presenting the record of a public document, to wit:
Section 24. Proof of official record. - The record of public documents referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody. x x x
Section 25. What attestation of copy must state. - Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.
(26a)

The foregoing bolstered the fact that the attestation, being at best the second-hand opinion of Atty. Tan as a
corporate auditor who did not have the copy of the supposed COA concurrence, could not stand as the
written concurrence of the COA contemplated by law for the purpose.

Nonetheless, even if the January 10, 2013 certification was to be regarded as the written concurrence of the
COA, the :fact that it was issued and presented after the Yorac Law Firm had entered its appearance on
June 17, 2011 as counsel of the HDMF should not go unnoticed. 73 Records reveal that as of December 7,
2011, the COA was still in the process of evaluating the request for the concurrence on the hiring by the
HDMF of the Yorac Law Firm.74 This forthwith contravened the specific requirement that the written
conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, and the written
concurrence of the COA should first be secured prior to the hiring or employment of the private lawyer or
law firm.75

In view of the HDMF's failure to secure the written concurrence of the COA, the Yorac Law Firm could not
have been considered as authorized to represent the HDMF. With the filing of the HDMF's motion for
reconsideration vis-a-vis the January 30, 2012 summary judgment of the Makati RTC being unauthorized,
the CA did not err in upholding the Makati RTC's treatment of the HDMF's motion as a mere scrap of paper.

1.c
The broader interest of justice and the peculiar legal and equitable circumstances herein justified
the relaxation of technical rules

The import of failing to file the motion for reconsideration on the part of the HDMF meant that the 60-day
period to initiate the petition for certiorari should be reckoned from its receipt of the assailed January 30,
2012 summary judgment. Since the HDMF actually filed the petition for certiorari on January 18, 2013, and
thus went beyond the reglementary period, the petition should be dismissed for being filed out of time.

There are instances, however, when the rigidity of the rule requiring the petition for certiorari to be filed
within 60 days from the receipt of the judgment, order, or resolution sought to be thereby assailed has been
relaxed, such as: (1) when the most persuasive and weighty reasons obtain; (2) when it is necessary to do
so in order to relieve a litigant from an injustice not commensurate with his failure to comply with the
prescribed procedure; (3) in case of the good faith of the defaulting party by immediately paying within a
reasonable time of the default; (4) when special or compelling circumstances exist; (5) when the merits of
the case so demand; (6) when the cause of the delay was not entirely attributable to the fault or negligence
of the party favored by the suspension of the rules; (7) when there is no showing that the review sought is
merely frivolous and dilatory; (8) when the other party will not be unjustly prejudiced thereby; (9) m case
of fraud, accident, mistake or excusable negligence without the appellant's fault; (10) when the peculiar
legal and equitable circumstances attendant to each case so require; (11) when substantial justice and fair
play are thereby served; (12) when the importance of the issues involved call for the relaxation; (13) in the
exercise of sound discretion by the court guided by all the attendant circumstances and (14) when the
exceptional nature of the case and strong public interest so demand. 76

Herein, the broader interest ofjustice and the attendant peculiar legal and equitable circumstances dictated
that the HDMF's petition for certiorari be resolved on its merits despite its filing beyond the reglementary
period. The HDMF believed in good faith that it had duly filed the motion for reconsideration vis-a-vis the
January 30, 2012 summary judgment. Although the Makati RTC noted the HDMF's tailure to secure the
COA's concurrence, and resolved to treat the HDMF's motion for reconsideration as a mere scrap of paper,
the reglementary period to file the petition for certiorari had already lapsed, such failure to file on time was
not entirely attributable to the fault or negligence of the HDMF.

2.
There was no probable cause for the filing of the information for syndicated estafa and for the
issuance of the warrants of arrest for syndicated estt fa against respondents

Delfin Lee, Dexter, Sagun and Alvarez were charged with syndicated estafa, along with Cristina Salagan, on
the basis of the findings of the DOJ that Globe Asiatique had violated its warranties under the FCAs and the
July 13, 2009 MOA; that Globe Asiatique had submitted spurious and questionable documents concen1ing
the qualifications of its buyers; that Globe Asiatique had employed fictitious buyers to obtain funds from the
HDMF; and that Globe Asiatique had failed to remit to the HDMF the monthly housing loan amortizations of
its buyers in the Xevera Project in Pampanga.77

The DOJ concluded thusly:

Given the foregoing the above-named respondents may be charged with the crime of "syndicated estafa" as
they fall within the legal definition of a syndicate. A syndicate is defined as consisting of five or more
persons fonned with the intention of carrying out the unlawful or illegal act, transaction, enterprise or
scheme and the defraudation results in the misappropriation of money contributed by stockholders, or
members of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by
corporations/associations from the general public. (Paragraph 1, Section 1, P.D. No. 1689; People of the
Philippines v. Vicente Menil, G.R. Nos. 115054-66, September 12, 2009).

xxxx

Having earlier established respondents' commission of estafa, it is pristine clear that the 1st and 2nd elements
of the offense of syndicated estafa has already been satisfied in the instant case. Relative to the 3rd element,
we believe that HDMF falls under the entities listed in P.D. 1689 that can be victimized under such law, as
the provision specifically includes entities which solicited funds from the general public. x x x

It is our considered view that HDMF is, in all respect, a corporation that solicited funds from the general
public, which respondents defrauded through the execution of their illegal scheme. We find as childish
respondents' Delfin and Dexter Lee's argument that the Pag-Ibig fund is a mandatory contribution and does
not fall under the term "solicited funds from the public." It bears to highlight that P.D. 1689 does not
distinguish whether the solicited fund is a voluntary or mandatory contribution. Rather, the essential point is
that the funds used by HDMF came from the general public. 78
On its part, the Pampanga RTC found probable cause for the issuance of warrants of arrest against the
respondents only because -
The records would show a huge amount of money that was transferred from the coffers of the PAG-IBIG
FUND and released to the GLOBE ASIATIQUE through a complex scheme involving fraudulent buyers at a
scale and over a period of time that could only have been accomplished by and through the sustained
supervision and action in concert of a group of persons for the attainment of the same criminal objective.
Hence, the Court finds probable cause for the existence of a syndicated estafa. 79
The crucial questions before us relate to: (1) the DOJ's finding of probable cause for the filing of the
information against Sagun; and (2) the Pampanga RTC's judicial determination of probable cause for the
issuance of the warrant of arrest against the respondents.

The concept of probable cause has been discussed in Napoles v. De Lima80 as follows:
x x x During preliminary investigation, the prosecutor determines the existence of probable cause for filing
an information in court or dismissing the criminal complaint. As worded in the Rules of Court, the prosecutor
determines during preliminary investigation whether "there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for
trial." At this stage, the determination of probable cause is an executive function. Absent grave abuse of
discretion, this determination cannot be interfered with by the courts. This is consistent with the doctrine of
separation of powers.

On the other hand, if done to issue an arrest warrant, the determination of probable cause is a judicial
function. No less than the Constitution commands that "no . . . warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce[.]" This requirement of personal evaluation by the judge is
reaffirmed in Rule 112, Section 5 (a) of the Rules on Criminal Procedure:
SEC. 5. When warrant of arrest may issue. -
(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds
probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or
information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause,
the judge may order the prosecutor to present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.
(Emphasis supplied)
Therefore, the determination of probable cause for filing an information in court and that for issuance of an
arrest warrant are different. Once the information is filed in court, the trial court acquires jurisdiction and
"any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court."
While the courts are generally not permitted to substitute their own judgments for that of the Executive
Branch in the discharge of its function of determining the existence of probable cause during the preliminary
investigation,81 the intervention of the courts may be permitted should there be grave abuse of discretion in
determining the existence of probable cause on the part of the investigating prosecutor or the Secretary of
Justice.
Thus, in order to settle whether or not the CA correctly reversed the August 10, 2011 Review Resolutionof
the DOJ insofar as it found probable cause to charge Sagun with syndicated estafa, and whether or not the
warrants of arrest issued against the respondents should be quashed, it is imperative to discuss the nature
of syndicated estafa.

Section 1 of P.D. No. 1689 defines syndicated estafa in the following manner:
SECTION 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Article
315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the
swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention
of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in
the misappropriation of money contributed by stockholders or members of rural banks, cooperative,
"samahang nayon(s)", or farmer's association, or of funds solicited by corporations/associations from the
general public.

When not committed by a syndicate as above defined, the penalty imposable shall be reclusion
temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.
P.D. No. 1689 seeks to impose a harsher penalty on certain forms of swindling, more particularly,
syndicated estafa. The preamble of the decree recites:
WHEREAS, there is an upsurge in the commission of swindling and other forms of frauds in rural banks,
cooperatives, "samahang nayon(s)", and farmers' associations or corporations/associations operating on
funds solicited from the general public;

WHEREAS, such defraudation or misappropnatwn of funds contributed by stockholders or members of such

rural banks, cooperatives, "samahang nayon(s)", or farmers' associations, or of funds solicited by
corporations/associations from the general public, erodes the confidence of the public in the banking and
cooperative system, contravenes the public interest, and constitutes economic sabotage that threatens the
stability of the nation;

WHEREAS, it is imperative that the resurgence of said crimes be checked, or at least minimized, by
imposing capital punishment on certain forms of swindling and other frauds involving rural banks,
cooperatives, "samahang nayon(s)", farmers' associations or corporations/associations operating on funds
solicited from the general public.
P.D. No. 1689 condemns the taking by fraud or deceit of funds contributed by members of rural banks,
cooperatives, samahang nayon or farmers' associations, or of funds solicited by corporations or associations
from the general public as such taking poses a serious threat to the general public. The elements of
syndicated estafa are: (a) estafa or other forms of swindling, as defined in Articles 315 and 316 of
the Revised Penal Code, is committed; (b) the estafa or swindling is committed by a syndicate of five or
more persons; and (c) defraudation results in the misappropriation of moneys contributed by the
stockholders, or members of rural banks, cooperative, samahang nayon(s), or farmers' associations, or of
funds solicited by corporations/associations from the general public. 82

In relation thereto, Article 315(2)(a) of the Revised Penal Code specifies that:
Art. 315. Swindling (estafa). - Any person who shall defraud another by any means mentioned herein below
shall be punished by:

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously
with the commission of the fraud:

(a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications, property,
credit, agency, business, or imaginary transactions; or by means of other similar deceits.

xxxx
The elements of estafa by means of deceit under Article 315(2)(a) of the Revised Penal Code are, namely:
(a) that there must be a false pretense or fraudulent representation as to his power, influence,
qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or
fraudulent representation was made or executed prior to or simultaneously with the commission of the
fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was
induced to part with his money or property; and (d) that as a result thereof, the offended party suffered
damage.83
Based on the foregoing elements of syndicated estafa, the Court holds that the CA did not err in reversing
the August 10, 2011 Review Resolution of the DOJ insofar as Sagun was concerned and in quashing the
warrants of arrest issued against the respondents. In the same manner, we find and so hold that the CA
erred in upholding the propriety of the issuance of the warrant of arrest against Salagan.

2.a
In the case of the respondents, there was no syndicate as defined under P.D. No. 1689

A syndicate is defined by P.D. No. 1689 as consisting of five or more persons formed with the intention
of carrying out the unlawful or illegal act, transaction, enterprise or scheme.84 The Court has
clarified in Remo v. Devanadera85 that in order for any group to be considered a syndicate under P.D. No.
1689 -
x x x [T]he perpetrators of an estafa must not only be comprised of at least five individuals but
must have also used the association that they formed or managed to defraud its own
stockholders, members or depositors. Thus:
On review of the cases applying the law, we note that the swindling syndicate used the association
that they manage to defraud the general public of funds contributed to the association. Indeed,
Section 1 of Presidential Decree No. 1689 speaks of a syndicate formed with the intention of carrying out the
unlawful scheme for the misappropriation of the money contributed by the members of the association. In
other words, only those who formed [or] manage associations that receive contributions from the
general public who misappropriated the contributions can commit syndicated estafa. x x x.
(Emphasis supplied).

xxxx
Dissecting the pronouncement in Galvez for our present purposes, however, we are able to come up with
the following standards by which a group of purported swindlers may be considered as a syndicate under PO
No. 1689:

1. They must be at least five (5) in number;

2. They must have formed or managed a rural bank, cooperative, "samahang nayon,"
farmer's association or any other corporation or association that solicits funds from
the general public.

3. They formed or managed such association with the intention of carrying out an
unlawful or illegal act, transaction, enterprise or scheme i.e., they used the very
association that they formed or managed as the means to defraud its own
stockholders, members and depositors.

None of the three abovementioned standards for determining the existence of a syndicate was present.

Delfin Lee, Dexter, Sagun, and Salagan were, respectively, the President/Chief Operating Officer, Executive.
Vice-President, Head of the Documentation Department, and Head of the Accounting/Finance Department of
Globe Asiatique.86 In view of their number being under five, the original charge brought against them was
only for simple estafa. It was only in the assailed Review Resolution of August 10, 2011 that SDSP
Villanueva recommended the filing of the charge for syndicated estafa due to the addition of Atty. Alvarez as
a co-respondent, thereby increasing the number of the respondents to at least five. But Atty. Alvarez was
the Manager of the HDMF's Foreclosure Department 87 whose only connection with Globe Asiatique was by
reason of his having rendered notarial services for the latter.88 If Atty. Alvarez was not related to Globe
Asiatique either by employment or by ownership, he could not be considered as part of the syndicate
supposedly formed or managed to defraud its stockholders, members, depositors or the public. This alone
immediately removed the respondents' supposedassociation from being found and considered as
a syndicate in the context of P.D. No. 1689.

Even assuming that Atty. Alvarez was juridically connected with Globe Asiatique in the context of P.D. No.
1689, the association of the respondents did not solicit funds from the general public. Globe Asiatique was
incorporated in 1994 as a legitimate real-estate developer "to acquire by purchase, lease, donation or
otherwise, to own, use, improve, develop, subdivide, sell, mortgage, exchange, lease, develop and hold for
investment or otherwise, real estate of all kinds, whether improve, manage, or otherwise dispose of
buildings, houses, apartments, and other structures of whatever kind, together with their
appurtenances."89 It is quite notable, too, that there was no allegation about Globe Asiatique having been
incorporated to defraud its stockholders or members. In fact, the HDMF, the only complainant in
the estafa charges, was not itself a stockholder or member of Globe Asiatique.

Moreover, the DOJ concluded that it was the HDMF itself, not Globe Asiatique, that had solicited funds from
the public, to wit:
x x x HDMF falls under the entities listed in PD 1689 that can be victimized under such law, as the provisions
specifically includes entities which solicited funds from the general public. x x x

xxxx

It is our considered view that HDMF is, in all respect, a corporation that solicited funds from the
general public, which respondents defrauded through the execution of their illegal scheme.

We find as childish respondents' Delfin and Dexter Lee's argument that the Pag-ibig fund is a
mandatory contribution and does not fall under the term "solicited funds from the public." It
bears to highlight that P.D. 1689 does not distinguish whether the solicited fund is voluntary or
mandatory contribution. Rather, the essential point is that the funds used by HDMF came from
the general public.90
The funds solicited by HDMF from the public were in the nature of their contributions as members of HDMF
and had nothing to do with their being a stockholder or member of Globe Asiatique.

It is further worth noting that the funds supposedly misappropriated did not belong to Globe Asiatique's
stockholders or members, or to the general public, but to the HDMF. The pecuniary damage pertained to the
FCLs extended to Globe Asiatique through ostensibly fictitious buyers and unremitted monthly housing loan
amortizations for the Xevera Project in Pampanga that were supposedly collected by Globe Asiatique in
behalf of the HDMF pursuant to the FCLs and MOA.

Based on the established circumstances, therefore, it becomes inevitable for the Court to affirm the CA's
following conclusion that:
x x x [T]he statement made by public respondent that there is probable cause because "x x x a huge
amount of money was transferred from the coffers of respondent HDMF and released to GA through a
complex scheme x x x that could only have been accomplished by and through the sustained supervision
and action in concert of a group of persons for the attainment of the same criminal objective," to be in the
nature of a speculation only and carries no weight in the determination of probable cause. Jurisprudence
dictates that in the determination of probable cause, the same should be based on hard facts and solid
evidence and not dwell on possibilities, suspicion and speculation. From the afore quoted paragraph alone,
petitioner's (Delfin Lee) participation, if there was any, in the offense for which he was indicted, was not
established or ascertained. Worse, petitioner was not even named. either were his cohorts in the alleged
defrauding of respondent HDMF.

Petitioner Lee and his co-accused were charged with syndicated estata. For estafa to have been committed
by a syndicate, the act must be committed by five or more persons. A considered scrutiny of thassailed
Resolution by public respondent which found probable cause to issue a warrant of arrest against petitionr
Lee and his co-accused, shows that there was no mention that the acb constituting estafa were done by five
or more persons. The resolution merely mentioned "could only have been accomplished by and through the
sustaincd supervision and action in concert of a group of persons for the attainment of the same criminal
objective." Moreover, the amount of damage incurred by respondent HDMF was not ascertained. It goes
without saying that public respondent did not take it upon herself to determine, based on the evidence
submitted, the exact amount of damage incurred by respondent HDMF. Public respondent merely made a
sweeping statement that a huge amount of money was transferred from the coffers of the PAG-IBIG Fund to
GA.
Under the canons of statutory construction, indeed, the determination of the purpose of the law is a step in
the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment
must necessarily shed considerable light on "the law of the statute," i.e., the intent; hence, the enactment
should be construed with reference to its intended scope and purpose, and the courts should seek to carry
out this purpose rather than to defeat it.91 Given the rationale and purpose behind the enactment of P.D. No.
1689, it becomes inevitable to conclude that the crime of syndicated estafa can only be committed by the
enumerated groups created for the sole purpose of defrauding its members through misappropriating the
funds solicited from and contributed by them. Evidently, the evil sought to be prevented by P.D. No. 1689
does not exist in this case.

2.b
Notwithstanding the absence of a syndicate, the respondents made false representations that
gave rise to probable cause for simple estafa against them

In Galvez v. Court of Appeals,92 the Court has emphasized that swindling may fall within the ambit of P.D.
No. 1689 if it is committed through an association. On the other hand, Article 315(2)(a) of the Revised
Penal Code applies regardless of the number of the accused when: (a) the entity soliciting funds from the
general public is the victim and not the means through which the estafa is committed, or (b) the offenders
are not owners or employees who used the association to perpetrate the crime.

Having shown that the alleged misappropriation was not committed through Globe Asiatique, we now
address whether or not the acts of the respondents gave rise to probable cause for simple estafa under
Article 315(2)(a) of the Revised Penal Code.

An examination of the records reveals that there is sufficient basis to support a reasonable belief that the
respondents were probably guilty of simple estafa. The first three elemenls of estafa under Article 315(2)(a)
of the Revised Penal Code - (a) that there must be a false pretense or fraudulent representation as to his
pOver, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such
false pretense or fraudulent representation was made or executed prior to or simultaneously with the
commission of the fraud; and (c) that the offended party relied on the false pretense, fraudulent act, or
fraudulent means and was induced to part with his money or property - obtained in this case.

The nature and character of deceit or fraud were explained in Lateo v. People,93 to wit:
[F]raud in its general sense is deemed to comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly
reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of
another. It is a generic term embracing all multifarious means which human ingenuity can device, and which
are resorted to by one individual to secure an advantage over another by false suggestions or by
suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which
another is cheated. And deceit is the false representation of a matter of fact whether by words or conduct,
by false or misleading allegations, or by concealment of that which should have been disclosed which
deceives or is intended to deceive another so that he shall act upon it to his legal injury.
The first two elements of estafa under Article 315(2)(a) of the Revised Penal Code are satisfied if the false
pretense or fraudulent act is committed prior to or simultaneously with the commission of the fraud, it being
essential that such false statement or representation constitutes the very cause or the only motive that
induces the offended party to part with his money. 94

In this connection, the DOJ underscored in its assailed Review Resolution that the fraudulent scheme
employed by the respondents involved the "special buyers" arrangement. According to the sinumpaang
salaysay of witnesses Francisco de la Cruz and Veniza Santos Panem, former employees of Globe Asiatique,
the "special buyers" arrangement required:
x x x those who are not yet members of Pag-ibig Fund but who are paid by GA to apply for, and become
members of the Fund in exchange of P5,000.00 so that their names/membership can be used to take out a
housing loan from Pag-ibig of units from housing projects of GA. They assert that these special buyers have
really no intention to buy housing units from GA projects but merely lend their Pag-ibig Fund membership to
GA for a fee on condition that they will not apply for a loan with Pag-Ibig for a period of two (2) years. The
agents/employees of GA are the ones who recruit these "special buyers" also for a commission. They explain
that once recruited, these "special buyers" are told to sign loan documents for Pag-Ibig but they will not
occupy the housing units for which they applied for a housing loan. These units taken out by Pag-ibig for
GA's "special buyers" are then sold to real buyers who buy direct from GA. Whenever real buyers complaint
that the units they bought had not yet been taken-out, they are made to execute an Affidavit of
Undertaking that they are willing to assume the balance on the loan of the "special buyer" and GA will make
it appear to Pag-Ibig that the "special buyer" has changed his mind so that the property could then be
transferred to the real buyer. They further claim that there are more than "special buyers" than real buyers
of GA and that its owners, respondents Delfin and Dexter Lee, themselves ordered the employees to recruit
"special buyers".

Witness Panem also asserted in her Sinumpaang Salaysay that "special buyers" are also employed by GA in
its transactions with banks, like the RCBC and PNB. One of the enticement for these "special buyers", aside
from the P5,000.00 fee, is that they are assured that they will not pay for the housing loan they applied for
with Pag-Ibig as in fact it is GA that pays for their housing loans. She also alleged that GA's employees
sometimes use fictitious names as "special buyers". 95
Allegedly using the "special buyers" scheme, Globe Asiatique entered into the FCAs with the HDMF during
the period from August 12, 2008 to July 10, 2009 wherein Globe Asiatique represented that: (a) the buyers
of its real estate projects were members of Pag-Ibig, hence, qualified to apply for the takeout loans under
the Pag-Ibig Housing Loan Program; (b) the members-borrowers and their respective housing loan
applications had been properly evaluated and approved in accordance with the applicable guidelines of the
Pag-Ibig Housing Loan Program prior to their endorsement to the Pag-Ibig Fund; (c) that all documents
submitted to the Pag-Ibig Fund, inclusive of the individual titles and the corresponding Deeds of Assignment,
were valid, binding, and enforceable in all other respects that they purported to be; (d) that any person or
agent employed or allowed to transact or do business in its behalf had not committed any act of
misrepresentation; and (e) that all pertinent laws, rules and regulations had been complied with, among
others.96 As the result thereof, the HDMF extended the FCLs in favor of Globe Asiatique amounting to P2.9
billion.

On July 13, 2009, the MOA was forged between the HDMF and Globe Asiatique for the latter to again avail of
a loan takeout from the HDMF. Accordingly, additional FCAs were extended to Globe Asiatique totaling P3.55
billion. While the MOA did not contain the same representations made in the previous FCAs, it nevertheless
required Globe Asiatique to undertake the following corrective measures in case defects in the HDMF
membership and housing loan eligibilities of the buyers should arise, namely:
1) Require the borrower to complete the required number of contributions, in case the required 24 monthly
contributions is not met;

2) Require the borrower to update membership contributions, in case the membership status is inactive;

3) Require the borrower to update any existing Multi-Purpose Loan (MPL) if its in arrears or pay in full if the
same has lapsed;

4) Buyback the account in case the member has a HDMF housing loan that is outstanding, cancelled, bought
back, foreclosed or subject of dacion-en-pago.97
Had Globe Asiatique, through the respondents, not made the foregoing representations and undertaking, the
HDMF would not have entered into the FCAs and granted the loan takeouts to Globe Asiatique to its damage
and prejudice.

We next determine the individual participation of the respondents in the "special buyers" scheme.

In Ching v. Secretary of Justice,98 the Court declared that corporate officers or employees through whose
act, default or omission the corporation commits a crime were themselves individually guilty of the crime.
The Court expounded why:
The principle applies whether or not the crime requires the consciousness of wrongdoing. It applies to those
corporate agents who themselves commit the crime and to those, who, by virtue of their managerial
positions or other similar relation to the corporation, could be deemed responsible for its commission, if by
virtue of their relationship to the corporation, they had the power to prevent the act. Moreover, all parties
active in promoting a crime, whether agents or not, are principals. Whether such officers or employees are
benefited by their delictual acts is not a touchstone of their criminal liability. Benefit is not an operative fact.
The DOJ aptly noted that the following acts of the respondents rendered them criminally accountable for
perpetrating the "special buyers" scheme and causing pecuniary damage to the HDMF: Delfin Lee, for
signing the FCAs and MOA in behalf of Globe Asiatique, and the checks issued by Globe Asiatique to the
"special buyers" and the HDMF;99Dexter, for giving the orders to recruit "special buyers" and co-signing
those checks issued to the special buyers and HDMF;100Sagun, head of Globe Asiatiques's Documentation
Department, for collating the documents submitted by the borrowers/buyers, checking if the same are
complete and duly accomplished, and for verifying whether or not said borrowers/buyers are indeed Pag-
Ibig members with updated contributions or existing housing loans101 and Salagan, head of Globe
Asiatique's Accounting/Finance Department, for reviewing all requests for payment from on-site projects and
preparing the corresponding checks. ensuring that all loan takeouts are duly recorded, and that
amortizations are timely remitted to HDMF.102

We agree that the concerted acts of the respondents could manifest a common criminal design to make it
appear that Globe Asiatique had numerous qualified borrowers/buyers that would satisfy the HDMF's
conditions for the loan takeouts. Their acts, taken collectively, would probably support a charge of
conspiracy, and suggest that they participated in the transactions with a view to furthering the common
design and purpose.103

As for Atty. Alvarez, we do not subscribe to the CA's view that his act of notarizing various documents,
consisting of the individual buyer's affidavit of income, promissory note and developer's affidavit, which
were material for the processing and approval of the transactions, 104 was insufficient to establish his having
been part of the conspiracy in the execution of the "special buyers" scheme. In our view, the DOJ had
reasonable basis to hold against him thusly:
x x x Atty. Alvarez knew, participated and consented to the illegal scheme perpetrated by respondents Delfin
and Dexter Lee, Christina Sagun and Cristina Salagan. It should be underscored that Atty. Alvarez notarized
crucial pieces of documents, consisting of the buyer's affidavit of income, promissory note, and developer's
affidavit (by Ms. Cristina Sagun) alleging compliance with the conditions set by HDMF, all of which are
essential for the processing and approval of the purported transaction. We also find the defense of Atty.
Alvarez as self-serving, to say the least, considering that part of his job as a notary public is to ascertain the
identity of the affiant appearing before him. As it turns out, a large number of the said affiants are either
fictitious and/or non-existing, thereby enabling the execution of the grand scheme of his co-respondents. It
bears to note that his actions, apart from evidencing his conspiracy, assent and/or cooperation in the
accomplishment of the fraud, also constitutes a clear violation of Section 7, Paragraph B (2) of Republic Act
No. 6713. also known as the Code of Conduct and Ethical Standards for Public Officials and Employees. 105
In view of the foregoing, the amendment of the information to charge simple estafa is warranted pursuant
to Hao v. People,106 to wit:
With our conclusion that probable cause existed for the crime of simple estafa and that the petitioners have
probably committed it, it follows that the issuance of the warrants of arrest against the petitioners remains
to be valid and proper. To allow them to go scot-free would defeat rather than promote the purpose of a
warrant of arrest, which is to put the accused in the court's custody to avoid his flight from the clutches of
justice.

Moreover, we note that simple estafa and syndicated estafa are not two entirely different crimes.
Simple estafa is a crime necessarily included in syndicated estafa. An offense is necessarily included in
another offense when the essential ingredients of the former constitute or form a part of those constituting
the latter.

Under this legal situation, only a formal amendment of the filed information under Section 14, Rule 110 of
the Rules of Court is necessary; the warrants of arrest issued against the petitioners should not be nullified
since probable cause exists for simple estafa.
3.
The conduct of the preliminary investigation by the DOJ was invalidly enjoined

In support of its move to reverse and set aside the adverse resolutions of the CA, the DOJ argues in C.A.-
G.R. No. 208744 and C.A.-G.R. No. 210095 that the CA should not have dismissed its petition
for certiorari for being allegedly filed out of time because there existed special and compelling reasons to
justify the relaxation of the procedural rules. Worthy to note is that the CA had denied petitioner's motion
for special extension of time to file the petition for certiorari because there was no compelling reason to
extend the period for doing so.

Under Section 4,107 Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, any aggrieved party
has a non-extendible period of 60 days from receipt of the assailed decision, order or resolution within which
to file the petition for certiorari. The period is non-extendible to avoid causing any unreasonable delay that
would violate the constitutional rights of parties to the speedy disposition of the case. 108 Regrettably, when
the DOJ finally filed the petition for certiorari during the extended period sought, the petition lacked the
proper docket number due to inadvertence, which prompted the CA to assign a new docket number to the
petition. This move on the part of the CA resulted in the outright dismissal of the petition for having been
filed beyond the reglementary period.

In view of the obtaining circumstances, we find merit in the DOJ's argument.

In Vallejo v. Court of Appeals,109 the Court allowed the petition filed almost four months beyond the
reglementary period to proceed. We emphasized therein that meritorious cases should be allowed to
proceed despite their inherent procedural defects and lapses in keeping with the principle that the rules of
procedure were but tools designed to facilitate the attainment of justice, and that the strict and rigid
application of rules that would allow technicalities to frustrate rather than promote substantial justice must
always be avoided. The Court explained that excusing a technical lapse and affording the parties a review of
the case to attain the ends of justice, instead of disposing of the case on technicality and thereby causing
grave injustice to the parties, would be a far better and more prudent course of action.

Time and again, the Court, in resolving the OSG's requests for extension, has taken cognizance of the heavy
workload of that office. It should not be any different now. Worthy to note is that the OSG, representing the
DOJ, offered suitable explanations and apologies, like the associate solicitor in charge of filing the petition
having been rushed to the hospital and thus being denied the opportunity to supervise or see to the filing of
the intended petition. Also, the omission of the docket number from the petition that was ultimately filed did
not look as if it was aimed either to delay the proceedings or to confuse the CA. The explanation for the
delay in the filing of the petition in the CA tendered by the OSG thereon, coupled with its invocation of
liberality or the relaxation of the rules, was fully acceptable. As such, the petition should be allowed to
proceed. We further find that the CA's dismissal of the petition was disproportionate to the inadvertence
committed considering the substantial merits of the DOJ's case. Verily, the petition deserves to be given due
course and resolved in view of the fact that the injunction issued by the RTC against the DOJ on the conduct
of the preliminary investigation was a patent nullity on its very face.

We now go to the merits of the petitions in C.A.-G.R. No. 208744 and C.A.-G.R. No. 210095.

The Pasig RTC issued the assailed April 10, 2013 order enjoining the DOJ from proceeding with the
preliminary investigation of the second, third, and fourth complaints for syndicated estafa against Globe
Asiatique, et al. because of its impression that the summary judgment rendered by the Makati RTC in favor
of Globe Asiatique had effectively removed the indispensable element of damage from the criminal
complaints.110 The Pasig RTC undeniably gravely abused its discretion in issuing the writ of preliminary
injunction.

It is an established judicial policy that injunction cannot be used as a tool to thwart criminal prosecutions
because investigating the criminal acts and prosecuting their perpetrators right away have always been in
the interest of the public. Such policy is intended to protect the public from criminal acts. The Pasig RTC
could not feign ignorance of such policy, especially considering that the CA's previous ruling against its
issuance of a writ of preliminary injunction had been affirmed by this Court with finality. The CA also
observed then:
[I]njunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be
immediately investigated and protected (sic) for the protection of society. It is only in extreme cases that
injunction will lie to stop criminal prosecution. Public respondent Judge anchored his issuance of the writ on
the existence of a prejudicial question. However, this Court finds that the facts and issues in the Makati civil
case are not determinative of Lee's guilt or innocence in the cases filed before the DOJ. Verily public
respondent Judge committed grave abuse of discretion amounting to lack of or in excess of jurisdiction when
he issued the writ of preliminary injunction enjoining the DOJ from filing an information of estafa against Lee
in the first DOJ case and from proceeding with the preliminary investigation in the second DOJ case. 111
We emphasize yet again that the conduct of a preliminary investigation, being executive in nature, was
vested in the DOJ. As such, the injunction issued by the Pasig RTC inexcusably interfered with the DOJ's
mandate under Section 3(2), Chapter 1, Title III, Book IV of the Administrative Code of 1987 to investigate
the commission of crimes and to prosecute the offenders.

Equally worthy of emphasis is that the ruling of the CA in C.A.-G.R. SP No. 121594 attained finality after the
Court reviewed such ruling in G.R. No. 201360. Considering that the petitions against the DOJ arose from
the same factual milieu and sought the same relief, which was to restrain the DOJ from conducting
preliminary investigations against Globe Asiatique and its officers and employees upon the complaints filed
before the DOJ, and considering further that the cases involved the same parties and reprised the
arguments, the doctrine of the law of the case certainly applied to bar a different outcome. At the very least,
the Pasig RTC should have been very well instructed thereby, and should have avoided the incongruous
situation of ignoring what was already the clear law of the case.

The doctrine of the law of the case precludes departure in a subsequent proceeding essentially involving the
same case from a rule previously made by an appellate court. Applying this doctrine, the Court in Land Bank
of the Philippines v. Suntay112 held that:
We underscore that Land Bank v. Suntay (G.R. No. 157903) was the appropriate case for the determination
of the issue of the finality of the assailed RARAD Decision by virtue of its originating from Land Bank's filing
on April 20, 2001 of its petition for judicial determination of just compensation against Suntay and RARAD
Mifias in the RTC sitting as a Special Agrarian Court. Therein, Suntay filed a motion to dismiss mainly on the
ground that the petition had been filed beyond the 15-day reglementary period as required by Section 11,
Rule XIII of the Rules of Procedure of DARAB. After the RTC granted the motion to dismiss, Land Bank
appealed to the CA, which sustained the dismissal. As a result, Land Bank came to the Court (G.R. No.
157903), and the Court then defined the decisive issue to be: "whether the RTC erred in dismissing the Land
Bank's petition for the determination of just compensation."

The Court ruled in favor of Land Bank. For both Land Bank and Suntay (including his assignee Lubrica), the
holding in Land Bank v. Suntay (G.R. No. 157903) became the law of the case that now controlled the
course of subsequent proceedings in the RTC as a Special Agrarian Court. In Cucueco v. Court of Appeals,
the Court defined law of the case as "the opinion delivered on a former appeal." Law of the case is a term
applied to an established rule that when an appellate court passes on a question and remands the case to
the lower court for further proceedings, the question there settled becomes the law of the case upon
subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or
decision between the same parties in the same case continues to be the law of the case, whether correct on
general principles or not, so long as the facts on which such decision was predicated continue to be the facts
of the case before the court. With the pronouncement in G.R. No. 157903 having undeniably become the
law of the case between the parties, we cannot pass upon and rule again on the same legal issue between
the same parties.113
Indeed, the issue submitted for the Pasig RTC's determination had been resolved by the CA in CA-G.R. SP
No. 121594 to the effect that the Pasig RTC could not enjoin the DOJ from proceeding with the preliminary
investigation of the second complaint. As far as the parties were concerned, therefore, the propriety of the
DOJ's conduct of the preliminary investigation was no longer an unresolved issue. But by issuing the writ of
preliminary injunction yet again to prevent the preliminary investigation of the second and subsequent
complaints by the DOJ, the Pasig RTC acted with manifest whimsicality that amounted to gross and patent
abuse of discretion. Such action was void and ineffectual.

WHEREFORE, the Court GRANTS:

(1) The petitions for review on certiorari in G.R. No. 209424 and, accordingly, ANNULS and SETS
ASIDEthe decision promulgated on October 7, 2013 by the Court of Appeals in C.A.-G.R. No. SP No.
128262; REVERSES the resolution of December 11, 2012 issued in Civil Case No. 10-1120 by the Regional
Trial Court, Branch 58, in Makati City declaring the partial summary judgment rendered on January 30, 2012
final and executory; PRONOUNCES that the partial summary judgment rendered on January 30, 2012 may
still be appealed by the aggrieved party upon rendition of the final judgment in Civil Case No. 10-1120;
and DIRECTS the Regional Trial Court, Branch 58, in Makati City to conduct further proceedings in Civil
Case No. 10-1120 with dispatch; and

(2) The petitions for review on certiorari in G.R. No. 208744 and G.R. No. 210095 and,
accordingly, REVERSES and SETS ASIDE the resolution promulgated on July 8, 2013 in C.A.-G.R. No.
130404 denying the motion for extension of the Department of Justice, and the resolution promulgated on
August 14, 2013 denying the motion to admit petition for certiorari filed by the Department of
Justice; LIFTSand QUASHES the writ of preliminary injunction issued on April 10, 2013 by the Regional
Trial Court, Branch 167, in Pasig City enjoining the preliminary investigation for the second, third and fourth
criminal complaints filed against the respondents on the ground that such writ of preliminary injunction was
issued with grave abuse of discretion amounting to lack of jurisdiction; DECLARES that the Department of
Justice may now resume the preliminary investigation of the remaining criminal complaints against the
respondents for simple estafa under Article 315(2)(a) of the Revised Penal Code; and ORDERS the Regional
Trial Court, Branch 167, in Pasig City to dismiss Civil Case No. 73115 entitled Delfin S. Lee v. Department of
Justice.

The Court PARTIALLY GRANTS the petitions for review on certiorari in G.R. No. 205698, G.R. No.
205780, G.R. No. 209446, G.R. No. 209489, G.R. No. 209852, G.R. No. 210143, G.R. No. 228452,
G.R. No. 228730 and G.R. No. 230680 and, accordingly:

(1) DIRECTS the DEPARTMENT OF JUSTICE to amend the information in Criminal Case No. 18480
entitled People of the Philippines v. Delfin Lee, Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty.
Alex Alvarez of the Regional Trial Court Branch 42, in San Fernando City, Pampanga to charge
respondents DELFIN S. LEE, DEXTER L. LEE, CHRISTINA SAGUN, CRISTINA SALAGAN and ALEX M.
ALVAREZ with simple estafa under Article 315(2)(a) of the Revised Penal Code; and

(2) ORDERS the Presiding Judge of the Regional Trial Court, Branch 42, in San Fernando City, Pampanga to
suspend proceedings in Criminal Case No. 18480 pending the filing by the DEPARTMENT OF JUSTICE of
the amended information as directed herein, and to try the respondents as the accused in Criminal Case No.
18480 in accordance therewith, without prejudice to acting on any matter incidental to the conduct of the
trial of a criminal case, including applications for bail.

No pronouncement on costs of suit.

SO ORDERED.

EN BANC

G.R. No. 216914, December 06, 2016

SUBIDO PAGENTE CERTEZA MENDOZA AND BINAY LAW OFFICES, Petitioner, v. THE COURT OF
APPEALS, HON. ANDRES B. REYES, JR., IN HIS CAPACITY AS PRESIDING JUSTICE OF THE COURT
OF APPEALS, AND THE ANTI-MONEY LAUNDERING COUNCIL, REPRESENTED BY ITS MEMBERS,
HON. AMANDO M. TETANGCO, JR., GOVERNOR OF THE BANGKO SENTRAL NG PILIPINAS, HON.
TERESITA J. HERBOSA, CHAIRPERSON OF THE SECURITIES AND EXCHANGE COMMISSION, AND
HON. EMMANUEL F. DOOC, INSURANCE COMMISSIONER OF THE INSURANCE
COMMISSION, Respondents.

DECISION

PEREZ, J.:

Challenged in this petition for certiorari1 and prohibition under Rule 65 of the Rules of Court is the
constitutionality of Section 11 of Republic Act (R.A.) No. 9160, the Anti-Money Laundering Act, as amended,
specifically the Anti-Money Laundering Council's authority to file with the Court of Appeals (CA) in this case,
an ex-parte application for inquiry into certain bank deposits and investments, including related accounts
based on probable cause.

In 2015, a year before the 2016 presidential elections, reports abounded on the supposed disproportionate
wealth of then Vice President Jejomar Binay and the rest of his family, some of whom were likewise elected
public officers. The Office of the Ombudsman and the Senate conducted investigations 2 and
inquiries3 thereon ostensibly based on their respective powers delineated in the Constitution.

From various news reports announcing the inquiry into then Vice President Binay's bank accounts, including
accounts of members of his family, petitioner Subido Pagente Certeza Mendoza & Binay Law Firm (SPCMB)
was most concerned with the article published in the Manila Times on 25 February 2015 entitled "Inspect
Binay Bank Accounts" which read, in pertinent part:

xxx The Anti-Money Laundering Council (AMLC) asked the Court of Appeals (CA) to allow the [C]ouncil to
peek into the bank accounts of the Binays, their corporations, and a law office where a family member
was once a partner.

xxxx

Also the bank accounts of the law office linked to the family, the Subido Pagente Certeza Mendoza &
Binay Law Firm, where the Vice President's daughter Abigail was a former partner.4

The following day, 26 February 2015, SPCMB wrote public respondent, Presiding Justice of the CA, Andres B.
Reyes, Jr.:

The law firm of Subido Pagente Certeza Mendoza and Binay was surprised to receive a call from Manila
Times requesting for a comment regarding a [supposed petition] filed by the Republic of the Philippines
represented by the Anti-Money Laundering Council before the Court of Appeals seeking to examine the law
office's bank accounts.
To verify the said matter, the law office is authorizing its associate Atty. Jose Julius R. Castro to inquire on
the veracity of said report with the Court of Appeals. He is likewise authorized to secure copies of the
relevant documents of the case, such as the petition and orders issued, if such a case exists.

As this is a matter demanding serious and immediate attention, the Firm respectfully manifests that if no
written response is received within 24-hours from receipt of this letter, we shall be at liberty to assume that
such a case exists and we shall act accordingly.

Hoping for your immediate action.

Respectfully yours,
For the Firm

CLARO F. CERTEZA5

Within twenty four (24) hours, Presiding Justice Reyes wrote SPCMB denying its request, thus:

Anent your request for a comment on a supposed petition to inquire into your law office's bank accounts,
please be informed that a petition of this nature is strictly confidential in that when processing the same, not
even the handling staff members of the Office of the Presiding Justice know or have any knowledge who the
subject bank account holders are, as well as the bank accounts involved.

Please be informed further that clearly under the rules, the Office of the Presiding Justice is strictly
mandated not to disclose, divulge, or communicate to anyone directly or indirectly, in any manner or by any
means, the fact of the filing of any petition brought before this Court by the Anti-Money Laundering Council,
its contents and even its entry in the logbook.

Trusting that you find satisfactory the foregoing explanation. 6

By 8 March 2015, the Manila Times published another article entitled, "CA orders probe of Binay's assets"
reporting that the appellate court had issued a Resolution granting the ex-parte application of the AMLC to
examine the bank accounts of SPCMB:

The Court of Appeals (CA) has officially issued an order for examination of Vice President Jejomar Binay's
bank accounts.

In granting the petition of the Anti-Money Laundering Council (AMLC), the CA also ordered the inspection of
the bank deposits of Binay's wife, children, and a law office connected to him.

xxx xxx xxx

The bank accounts of the law office linked to Binay - the Subido Pagente Certeza Mendoza &
Binay where Binay's daughter, Makati City (Metro Manila) Rep. Mar-len Abigail Binay was a partner, are also
included in the probe, the sources said. 7

Forestalled in the CA thus alleging that it had no ordinary, plain, speedy, and adequate remedy to protect its
rights and interests in the purported ongoing unconstitutional examination of its bank accounts by public
respondent Anti-Money Laundering Council (AMLC), SPCMB undertook direct resort to this Court via this
petition for certiorari and prohibition on the following grounds:

A. THE ANTI-MONEY LAUNDERING ACT IS UNCONSTITUTIONAL INSOFAR AS IT ALLOWS THE

EXAMINATION OF A BANK ACCOUNT WITHOUT ANY NOTICE TO THE AFFECTED PARTY: cralawlawlibrary
1. IT VIOLATES THE PERSON'S RIGHT TO DUE PROCESS; AND

IT VIOLATES THE PERSON'S RIGHT TO PRIVACY.

2.

B. EVEN ASSUMING ARGUENDO THAT THE ANTI-MONEY LAUNDERING ACT IS CONSTITUTIONAL, THE
RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION CONSIDERING THAT:
cralawlawlibrary

1. THE REFUSAL OF RESPONDENT PRESIDING JUSTICE TO PROVIDE

PETITIONER WITH A COPY OF THE EX-PARTE APPLICATION FOR BANK
EXAMINATION FILED BY RESPONDENT AMLC AND ALL OTHER
PLEADINGS, MOTIONS, ORDERS, RESOLUTIONS, AND PROCESSES
ISSUED BY THE RESPONDENT COURT OF APPEALS IN RELATION
THERETO VIOLATES PETITIONER'S RIGHT TO DUE PROCESS;

2. A CARTE BLANCHE AUTHORITY TO EXAMINE ANY AND ALL

TRANSACTIONS PERTAINING TO PETITIONER'S BANK ACCOUNTS
VIOLATES THE ATTORNEY-CLIENT PRIVILEGE WHICH IS SACROSANCT
IN THE LEGAL PROFESSION;

3. A BLANKET AUTHORITY TO EXAMINE PETITIONER'S BANK ACCOUNTS,

INCLUDING ANY AND ALL TRANSACTIONS THEREIN FROM ITS
OPENING UP TO THE PRESENT, PARTAKES THE NATURE OF A GENERAL
WARRANT THAT IS CLEARLY INTENDED TO AID A MERE FISHING
EXPEDITION;

4. THERE IS NOTHING IN THE ANTI-MONEY LAUNDERING ACT THAT

ALLOWS OR JUSTIFIES THE WITHHOLDING OF INFORMATION AND/OR
ANY COURT RECORDS OR PROCEEDINGS PERTAINING TO AN
EXAMINATION OF A BANK ACCOUNT, ESPECIALLY IF THE COURT HAS
ALREADY GRANTED THE AUTHORITY TO CONDUCT THE EXAMINATION;

5. THE PETITIONER DID NOT COMMIT, NOR HAS THE PETITIONER BEEN
IMPLEADED IN ANY COMPLAINT INVOLVING ANY PREDICATE CRIME
THAT WOULD JUSTIFY AN INQUIRY INTO ITS BANK ACCOUNTS; AND

7. THE EXAMINATION OF THE PETITIONER'S BANK ACCOUNTS IS A FORM

 OF POLITICAL PERSECUTION OR HARASSMENT.8

In their Comment, the AMLC, through the Office of the Solicitor General (OSG), points out a supposed
jurisdictional defect of the instant petition, i.e., SPCMB failed to implead the House of Representatives which
enacted the AMLA and its amendments. In all, the OSG argues for the dismissal of the present petition,
highlighting that the AMLC's inquiry into bank deposits does not violate due process nor the right to privacy:

1. Section 11's allowance for AMLC's ex-parte application for an inquiry into particular bank deposits and
investments is investigative, not adjudicatory;

2. The text of Section 11 itself provides safeguards and limitations on the allowance to the AMLC to inquire
into bank deposits: (a) issued by the CA based on probable cause; and (b) specific compliance to the
requirements of Sections 2 and 3, Article III of the Constitution;

3. The ex-parte procedure for investigating bank accounts is necessary to achieve a legitimate state
objective;

4. There is no legitimate expectation of privacy as to the bank records of a depositor;

5. The examination of, and inquiry, into SPCMB's bank accounts does not violate Attorney-Client Privilege;
and

6. A criminal complaint is not a pre-requisite to a bank inquiry order.

In their Reply, SPCMB maintains that the ex-parte proceedings authorizing inquiry of the AMLC into certain
bank deposits and investments is unconstitutional, violating its rights to due process and privacy.

Before anything else, we here have an original action turning on three crucial matters: (1) the petition
reaches us from a letter of the Presiding Justice of the CA in response to a letter written by SPCMB; (2)
SPCMB's bank account has been reported to be a related account to Vice President Binay's investigated by
the AMLC for anti-money laundering activities; and (3) the constitutionality of Section 11 of the AMLA at its
recent amendment has not been squarely raised and addressed.

To obviate confusion, we act on this petition given that SPCMB directly assails the constitutionality of Section
11 of the AMLA where it has been widely reported that Vice President Binay's bank accounts and all related
accounts therewith are subject of an investigation by the AMLC. In fact, subsequent events from the filing of
this petition have shown that these same bank accounts (including related accounts) were investigated by
the Ombudsman and both Houses of the Legislature. However, at the time of the filing of this petition,
SPCMB alleged that its accounts have been inquired into but not subjected to a freeze order under Section
10 of the AMLA. Thus, as previously noted, with its preclusion of legal remedies before the CA which under
the AMLA issues the ex-parte bank inquiry and freeze orders, Sections 10 and 11, respectively, SPCMB
establishes that it has no plain, speedy and adequate remedy in the ordinary course of law to protect its
rights and interests from the purported unconstitutional intrusion by the AMLC into its bank accounts.

The foregoing shall be addressed specifically and bears directly on the disposition of the decision herein.

Additionally, we note that the OSG did not question how this petition reaches us from a letter of the
appellate court's Presiding Justice, only that, procedurally, SPCMB should have impleaded Congress.

On the sole procedural issue of whether SPCMB ought to have impleaded Congress, the contention of the
OSG though novel is untenable. All cases questioning the constitutionality of a law does not require that
Congress be impleaded for their resolution. The requisites of a judicial inquiry are elementary:

1. There must be an actual case or controversy; party;

2. The question of constitutionality must be raised by the proper party;

3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the case itself. 9

The complexity of the issues involved herein require us to examine the assailed provision vis-a-vis the
constitutional proscription against violation of due process. The statute reads:

SEC. 11. Authority to Inquire into Bank Deposits. - Notwithstanding the provisions of Republic Act No. 1405,
as amended; Republic Act No. 6426, as amended; Republic Act No. 8791; and other laws, the AMLC may
inquire into or examine any particular deposit or investment, including related accounts, with any banking
institution or non-bank financial institution upon order of any competent court based on an ex
parte application in cases of violations of this Act, when it has been established that there is probable cause
that the deposits or investments, including related accounts involved, are related to an unlawful activity as
defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof; except that no court
order shall be required in cases involving activities defined in Section 3(i)(1), (2), and (12) hereof, and
felonies or offenses of a nature similar to those mentioned in Section 3(i)(1), (2), and (12), which are
punishable under the penal laws of other countries, and terrorism and conspiracy to commit terrorism as
defined and penalized under Republic Act No. 9372.

The Court of Appeals shall act on the application to inquire into or examine any deposit or investment with
any banking institution or non-bank financial institution within twenty-four (24) hours from filing of the
application.

To ensure compliance with this Act, the Bangko Sentral ng Pilipinas may, in the course of a periodic or
special examination, check the compliance of a covered institution with the requirements of the AMLA and
its implementing rules and regulations.

For purposes of this section, 'related accounts' shall refer to accounts, the funds and sources of which
originated from and/or are materially linked to the monetary instrument(s) or property(ies) subject of the
freeze order(s).

A court order ex parte must first be obtained before the AMLC can inquire into these related
Accounts: Provided, That the procedure for the ex parte application of the ex partecourt order for the
principal account shall be the same with that of the related accounts.

The authority to inquire into or examine the main account and the related accounts shall comply with the
requirements of Article III, Sections 2 and 3 of the 1987 Constitution, which are hereby incorporated by
reference.10

The due process clause of the Constitution reads:

SECTION 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any
person be denied the equal protection of the laws. 11

The right to due process has two aspects: (1) substantive which deals with the extrinsic and intrinsic validity
of the law; and (2) procedural which delves into the rules government must follow before it deprives a
person of its life, liberty or property.12

As presently worded, Section 11 of the AMLA has three elements: (1) ex-parte application by the AMLC; (2)
determination of probable cause by the CA; and (3) exception of court order in cases involving unlawful
activities defined in Sections 3(i)(1), (2), and (12).

As a brief backgrounder to the amendment to Section 11 of the AMLA, the text originally did not specify for
an ex-parte application by the AMLC for authority to inquire into or examine certain bank accounts or
investments. The extent of this authority was the topic of Rep. of the Phils. v. Hon. Judge Eugenio, Jr., et al.
(Eugenio)13 where the petitioner therein, Republic of the Philippines, asseverated that the application for that
kind of order under the questioned section of the AMLA did not require notice and hearing. Eugenio schooled
us on the AMLA, specifically on the provisional remedies provided therein to aid the AMLC in enforcing the
law:

It is evident that Section 11 does not specifically authorize, as a general rule, the issuanceex-parte of the
bank inquiry order. We quote the provision in full:

SEC. 11. Authority to Inquire into Bank Deposits. — Notwithstanding the provisions of Republic Act No.
1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC
may inquire into or examine any particular deposit or investment with any banking institution or non bank
financial institution upon order of any competent court in cases of violation of this Act, when it has been
established that there is probable cause that the deposits or investments are related to an
unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4
hereof, except that no court order shall be required in cases involving unlawful activities defined
in Sections 3(i)1, (2) and (12).

To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any
deposit of investment with any banking institution or non bank financial institution when the examination is
made in the course of a periodic or special examination, in accordance with the rules of examination of the
BSP. (Emphasis supplied)

Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a judicial
order in cases where there is probable cause that the deposits or investments are related to kidnapping for
ransom, certain violations of the Comprehensive Dangerous Drugs Act of 2002, hijacking and other
violations under R.A. No. 6235, destructive arson and murder. Since such special circumstances do not
apply in this case, there is no need for us to pass comment on this proviso. Suffice it to say, the proviso
contemplates a situation distinct from that which presently confronts us, and for purposes of the succeeding
discussion, our reference to Section 11 of the AMLA excludes said proviso.

In the instances where a court order is required for the issuance of the bank inquiry order, nothing in
Section 11 specifically authorizes that such court order may be issued ex parte. It might be argued that this
silence does not preclude the ex parte issuance of the bank inquiry order since the same is not prohibited
under Section 11. Yet this argument falls when the immediately preceding provision, Section 10, is
examined.

SEC 10. Freezing of Monetary Instrument or Property. — The Court of Appeals, upon application ex
parte by the AMLC and after determination that probable cause exists that any monetary instrument or
property is in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze
order which shall be effective immediately. The freeze order shall be for a period of twenty (20) days
unless extended by the court.

Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order
under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to
effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to
authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. If
indeed the legislature had intended to authorize ex parte proceedings for the issuance of the bank inquiry
order, then it could have easily expressed such intent in the law, as it did with the freeze order under
Section 10.

Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the same time,
through the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not the Court of
Appeals, which had authority to issue a freeze order, whereas a bank inquiry order always then required,
without exception, an order from a competent court. It was through the same enactment that ex
parte proceedings were introduced for the first time into the AMLA, in the case of the freeze order which
now can only be issued by the Court of Appeals. It certainly would have been convenient, through the same
amendatory law, to allow a similar ex parte procedure in the case of a bank inquiry order had Congress been
so minded. Yet nothing in the provision itself, or even the available legislative record, explicitly points to
an ex parte judicial procedure in the application for a bank inquiry order, unlike in the case of the freeze
order.
That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is
confirmed by the present implementing rules and regulations of the AMLA, promulgated upon the passage of
R.A. No. 9194. With respect to freeze orders under Section 10, the implementing rules do expressly provide
that the applications for freeze orders be filed ex parte, but no similar clearance is granted in the case of
inquiry orders under Section 11. These implementing rules were promulgated by the Bangko Sentral ng
Pilipinas, the Insurance Commission and the Securities and Exchange Commission, and if it was the true
belief of these institutions that inquiry orders could be issued ex parte similar to freeze orders, language to
that effect would have been incorporated in the said Rules. This is stressed not because the implementing
rules could authorize ex parte applications for inquiry orders despite the absence of statutory basis, but
rather because the framers of the law had no intention to allow such ex parte applications.

Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC to enforce the provisions of the
AMLA specifically authorize ex parte applications with respect to freeze orders under Section 10 but make no
similar authorization with respect to bank inquiry orders under Section 11.

The Court could divine the sense in allowing ex parte proceedings under Section 10 and in proscribing the
same under Section 11. A freeze order under Section 10 on the one hand is aimed at preserving monetary
instruments or property in any way deemed related to unlawful activities as defined in Section 3(i) of the
AMLA. The owner of such monetary instruments or property would thus be inhibited from utilizing the same
for the duration of the freeze order. To make such freeze order anteceded by a judicial proceeding with
notice to the account holder would allow for or lead to the dissipation of such funds even before the order
could be issued. (Citations omitted.)

Quite apparent from the foregoing is that absent a specific wording in the AMLA allowing for ex-
parteproceedings in orders authorizing inquiry and examination by the AMLC into certain bank deposits or
investments, notice to the affected party is required.

Heeding the Court's observance in Eugenio that the remedy of the Republic then lay with the legislative,
Congress enacted Republic Act No. 10167 amending Section 11 of the AMLA and specifically inserted the
word ex-parte appositive of the nature of this provisional remedy available to the AMLC thereunder.

It is this current wording of Section 11 which SPCMB posits as unconstitutional and purportedly actually
proscribed in Eugenio.

We do not subscribe to SPCMB's position.

Succinctly, Section 11 of the AMLA providing for ex-parte application and inquiry by the AMLC into certain
bank deposits and investments does not violate substantive due process, there being no physical seizure of
property involved at that stage. It is the preliminary and actual seizure of the bank deposits or investments
in question which brings these within reach of the judicial process, specifically a determination that the
seizure violated due process.14 In fact, Eugenio delineates a bank inquiry order under Section 11 from a
freeze order under Section 10 on both remedies' effect on the direct objects, i.e. the bank deposits and
investments:

On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical seizure
of property of the account holder. What the bank inquiry order authorizes is the examination of the
particular deposits or investments in banking institutions or non-bank financial institutions. The monetary
instruments or property deposited with such banks or financial institutions are not seized in a physical
sense, but are examined on particular details such as the account holder's record of deposits and
transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank inquiry
order cannot be physically seized or hidden by the account holder. Said records are in the possession of the
bank and therefore cannot be destroyed at the instance of the account holder alone as that would require
the extraordinary cooperation and devotion of the bank. 15

At the stage in which the petition was filed before us, the inquiry into certain bank deposits and investments
by the AMLC still does not contemplate any form of physical seizure of the targeted corporeal property. From
this cite, we proceed to examine whether Section 11 of the law violates procedural due process.
As previously stated, the AMLA now specifically provides for an ex-parte application for an order authorizing
inquiry or examination into bank deposits or investments which continues to pass constitutional muster.

Procedural due process is essentially the opportunity to be heard. 16 In this case, at the investigation stage
by the AMLC into possible money laundering offenses, SPCMB demands that it have notice and hearing of
AMLC's investigation into its bank accounts.

We are not unaware of the obiter in Eugenio17 and cited by SPCMB, voicing misgivings on an interpretation
of the former Section 11 of the AMLA allowing for ex-parte proceedings in bank inquiry orders, to wit:

There certainly is fertile ground to contest the issuance of an ex-parte order. Section 11 itself requires that it
be established that "there is probable cause that the deposits or investments are related to unlawful
activities," and it obviously is the court which stands as arbiter whether there is indeed such probable cause.
The process of inquiring into the existence of probable cause would involve the function of determination
reposed on the trial court. Determination clearly implies a function of adjudication on the part of the trial
court, and not a mechanical application of a standard pre-determination by some other body. The word
"determination" implies deliberation and is, in normal legal contemplation, equivalent to "the decision of a
court of justice."

The court receiving the application for inquiry order cannot simply take the AMLC's word that probable cause
exists that the deposits or investments are related to an unlawful activity. It will have to exercise its own
determinative function in order to be convinced of such fact. The account holder would be certainly
capable of contesting such probable cause if given the opportunity to be apprised of the pending
application to inquire into his account; hence a notice requirement would not be an empty
spectacle. It may be so that the process of obtaining the inquiry order may become more cumbersome or
prolonged because of the notice requirement, yet we fail to see any unreasonable burden cast by such
circumstance. After all, as earlier stated, requiring notice to the account holder should not, in any way,
compromise the integrity of the bank records subject of the inquiry which remain in the possession and
control of the bank. (Emphasis supplied)

On that score, the SPCMB points out that the AMLC 's bank inquiry is preliminary to the seizure and
deprivation of its property as in a freeze order under Section 10 of the AMLA which peculiarity lends itself to
a sui generis proceeding akin to the evaluation process in extradition proceedings pronounced in Secretary
of Justice v. Hon. Lantion.18 Under the extradition law, the Secretary of Foreign Affairs is bound to make a
finding that the extradition request and its supporting documents are sufficient and complete in form and
substance before delivering the same to the Secretary of Justice. We ruled:

[L]ooking at the factual milieu of the case before us, it would appear that there was failure to abide by the
provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to
the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the
Department of Justice received the request, apparently without the Department of Foreign affairs
discharging its duty thoroughly evaluating the same and its accompanying documents. xxx.

xxxx

[T]he record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly
reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment
that the request and its annexed documents satisfy the requirements of law. XXX.

The evaluation process, just like the extradition proceedings, proper belongs to a class by itself.
It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely
an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to
make a technical assessment of the completeness and sufficiency of the extradition papers; (b)
to outrightly deny the request if on its face and on the face of the supporting documents the
crimes indicated are not extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military one which is not punishable
under non-military penal legislation. Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an
administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision supported by
the facts proved. Inquisitorial power, which is also known as examining or investigatory power, is one of the
determinative powers of an administrative body which better enables it to exercise its quasi-judicial
authority. This power allows the administrative body to inspect the records and premises, and investigate
the activities, of persons or entities coming under its jurisdiction, or to require disclosure of information by
means of accounts, records, reports, testimony of witnesses, production of documents, or otherwise.

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or
tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.19 (Emphasis supplied, citations omitted)

The submission of AMLC requires a determination whether the AMLC is an administrative body with quasi-
judicial powers; corollary thereto, a determination of the jurisdiction of the AMLC.

Lim v. Gamosa20 is enlightening on jurisdiction and the requirement of a specific grant thereof in the
enabling law. We declared that the creation of the National Commission on Indigenous Peoples (NCIP) by
the Indigenous Peoples Rights Act (IPRA) did not confer it exclusive and original, nor primary jurisdiction, in
all claims and disputes involving rights of IPs and ICCs where no such specific grant is bestowed.

In this instance, the grant of jurisdiction over cases involving money laundering offences is bestowed on the
Regional Trial Courts and the Sandiganbayan as the case may be. In fact, Rule 5 of the IRR is
entitled Jurisdiction of Money Laundering Cases and Money Laundering Investigation Procedures:

Rule 5.a. Jurisdiction of Money Laundering Cases. The Regional Trial Courts shall have the jurisdiction
to try all cases on money laundering. Those committed by public officers and private persons who are in
conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.

Rule 5.b. Investigation of Money Laundering Offenses. - The AMLC shall investigate:

(1) suspicious transactions;

(2) covered transactions deemed suspicious after an investigation conducted by the AMLC;
(3) money laundering activities; and
(4) other violations of the AMLA, as amended.

The confusion on the scope and parameters of the AMLC's investigatory powers and whether such seeps into
and approximates a quasi-judicial agency's inquisitorial powers lies in the AMLC's investigation and
consequent initial determination of whether certain activities are constitutive of anti-money laundering
offenses.

The enabling law itself, the AMLA, specifies the jurisdiction of the trial courts, RTC and Sandiganbayan, over
money laundering cases, and delineates the investigative powers of the AMLC.

Textually, the AMLA is the first line of defense against money laundering in compliance with our international
obligation. There are three (3) stages of determination, two (2) levels of investigation, falling under three
(3) jurisdictions:

1. The AMLC investigates possible money laundering offences and initially determines whether there is
probable cause to charge any person with a money laundering offence under Section 4 of the AMLA,
resulting in the filing of a complaint with the Department of Justice or the Office of the Ombudsman; 21

2. The DOJ or the Ombudsman conducts the preliminary investigation proceeding and if after due notice and
hearing finds probable cause for money laundering offences, shall file the necessary information before the
Regional Trial Courts or the Sandiganbayan;22

3. The RTCs or the Sandiganbayan shall try all cases on money laundering, as may be applicable. 23
Nowhere from the text of the law nor its Implementing Rules and Regulations can we glean that the AMLC
exercises quasi-judicial functions whether the actual preliminary investigation is done simply at its behest or
conducted by the Department of Justice and the Ombudsman.

Again, we hark back to Lantion citing Ruperto v. Torres,23-a where the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation:

[Such a body] does not exercise judicial functions and its power is limited to investigating facts and making
findings in respect thereto. The Court laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power
and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only
purpose for investigation is to evaluate evidence submitted before it based on the facts and Circumstances
presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties,
then there is an absence of judicial discretion and judgment.

adjudicate in regard to the rights and obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers comply with the requirements of the law and
the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely
initial and not final. The body has no power to determine whether or not the extradition should be effected.
That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition
petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is

characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process.
Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be
effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of
the request. This is so because the Treaty provides that in case of urgency, a contracting party may request
the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9,
RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted
(Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the
arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this
respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US
Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this
detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the
prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential
Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation
stage. It is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are essentially
criminal since such technical assessment sets off or commences the procedure for, and ultimately, the
deprivation of liberty of a prospective extraditee, As described by petitioner himself, this is a "tool" for
criminal law enforcement. In essence, therefore, the evaluation process partakes of the nature of a criminal
investigation. In a number of cases, we had occasion to make available to a respondent in an administrative
case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions.
Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly
available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the
right to counsel and the right against self-incrimination.24 (Citations omitted)

In contrast to the disposition in Lantion that the evaluation process before the Department of Foreign Affairs
is akin to an administrative agency conducting investigative proceedings with implications on the
consequences of criminal liability, i.e., deprivation of liberty of a prospective extraditee, the sole
investigative functions of the AMLC finds more resonance with the investigative functions of the National
Bureau of Investigation (NBI).
That the AMLC does not exercise quasi-judicial powers and is simply an investigatory body finds support in
our ruling in Shu v. Dee.25 In that case, petitioner Shu had filed a complaint before the NBI charging
respondents therein with falsification of two (2) deeds of real estate mortgage submitted to the Metropolitan
Bank and Trust Company (Metrobank). After its investigation, the NBI came up with a Questioned
Documents Report No. 746-1098 finding that the signatures of petitioner therein which appear on the
questioned deeds are not the same as the standard sample signatures he submitted to the NBI. Ruling on
the specific issue raised by respondent therein that they had been denied due process during the NBI
investigation, we stressed that the functions of this agency are merely investigatory and informational in
nature:

[The NBI] has no judicial or quasi-judicial powers and is incapable of granting any relief to any party. It
cannot even determine probable cause. The NBI is an investigative agency whose findings are merely
recommendatory. It undertakes investigation of crimes upon its own initiative or as public welfare may
require in accordance with its mandate. It also renders assistance when requested in the investigation or
detection of crimes in order to prosecute the persons responsible.

Since the NBI's findings were merely recommendatory, we find that no denial of the respondent's due
process right could have taken place; the NBI's findings were still subject to the prosecutor's and the
Secretary of Justice's actions for purposes of finding the existence of probable cause. We find it significant
that the specimen signatures in the possession of Metrobank were submitted by the respondents for the
consideration of the city prosecutor and eventually of the Secretary of Justice during the preliminary
investigation proceedings. Thus, these officers had the opportunity to examine these signatures.

The respondents were not likewise denied their right to due process when the NBI issued the questioned
documents report. We note that this report merely stated that the signatures appearing on the two deeds
and in the petitioner's submitted sample signatures were not written by one and the same person. Notably,
there was no categorical finding in the questioned documents report that the respondents falsified the
documents. This report, too, was procured during the conduct of the NBI's investigation at the petitioner's
request for assistance in the investigation of the alleged crime of falsification. The report is inconclusive and
does not prevent the respondents from securing a separate documents examination by handwriting experts
based on their own evidence. On its own, the NBI's questioned documents report does not directly point to
the respondents' involvement in the crime charged. Its significance is that, taken together with the other
pieces of evidence submitted by the parties during the preliminary investigation, these evidence could be
sufficient for purposes of finding probable cause — the action that the Secretary of Justice undertook in the
present case.

As carved out in Shu, the AMLC functions solely as an investigative body in the instances mentioned in Rule
5.b.26 Thereafter, the next step is for the AMLC to file a Complaint with either the DOJ or the Ombudsman
pursuant to Rule 6.b.

Even in the case of Estrada v. Office of the Ombudsman,27 where the conflict arose at the preliminary
investigation stage by the Ombudsman, we ruled that the Ombudsman's denial of Senator Estrada's Request
to be furnished copies of the counter-affidavits of his co-respondents did not violate Estrada's constitutional
right to due process where the sole issue is the existence of probable cause for the purpose of determining
whether an information should be filed and does not prevent Estrada from requesting a copy of the counter-
affidavits of his co-respondents during the pre-trial or even during trial. We expounded on the nature of
preliminary investigation proceedings, thus:

It should be underscored that the conduct of a preliminary investigation is only for the determination of
probable cause, and "probable cause merely implies probability of guilt and should be determined in a
summary manner. A preliminary investigation is not a part of the trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence." Thus, the rights of a respondent in a preliminary investigation are
limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is probably guilty thereof, and should be held for trial.
The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender
a well founded belief' as to the fact of the commission of a crime and the respondent's probable guilt thereof
A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it
is for the presentation of such evidence only as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof. We are in accord with the state prosecutor's
findings in the case at bar that there exists prima facie evidence of petitioner's involvement in the
commission of the crime, it being sufficiently supported by the evidence presented and the facts obtaining
therein.

Likewise devoid of cogency is petitioner's argument that the testimonies of Galarion and Hanopol are
inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine
the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right
to examine or cross-examine. Thus, even if petitioner was not given the opportunity to cross-examine
Galarion and Hanopol at the time they were presented to testify during the separate trial of the case against
Galarion and Roxas, he cannot assert any legal right to cross-examine them at the preliminary investigation
precisely because such right was never available to him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court during the trial proper and not in the preliminary
investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control
over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be
waived by the accused, we find no compelling justification for a strict application of the evidentiary rules. In
addition, considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary
investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies of
Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the prosecuting
fiscal. And, even if the prosecution does present such testimonies, petitioner can always object thereto and
the trial court can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court
to compel the presentation of Galarion and Hanopol for purposes of cross-examination. (Citations and
emphasis omitted)

Plainly, the AMLC's investigation of money laundering offenses and its determination of possible money
laundering offenses, specifically its inquiry into certain bank accounts allowed by court order, does not
transform it into an investigative body exercising quasi-judicial powers. Hence, Section 11 of the AMLA,
authorizing a bank inquiry court order, cannot be said to violate SPCMB's constitutional right to procedural
due process.

We now come to a determination of whether Section 11 is violative of the constitutional right to privacy
enshrined in Section 2, Article III of the Constitution. SPCMB is adamant that the CA's denial of its request
to be furnished copies of AMLC's ex-parte application for a bank inquiry order and all subsequent pleadings,
documents and orders filed and issued in relation thereto, constitutes grave abuse of discretion where the
purported blanket authority under Section 11: (1) partakes of a general warrant intended to aid a mere
fishing expedition; (2) violates the attorney-client privilege; (3) is not preceded by predicate crime charging
SPCMB of a money laundering offense; and (4) is a form of political harassment [of SPCMB's] clientele.

We shall discuss these issues jointly since the assailed Section 11 incorporates by reference that "[t]he
authority to inquire into or examine the main and the related accounts shall comply with the requirements of
Article III, Sections 2 and 3 of the 1987 Constitution." On this point, SPCMB asseverates that "there is
nothing in the AMLA that allows or justifies the withholding of information and/or any court records or
proceedings pertaining to an examination of a bank account, especially if the court has already granted the
authority to conduct the examination."

The theme of playing off privacy rights and interest against that of the state's interest in curbing money
laundering offenses is recurring.28

The invoked constitutional provisions read:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the person or things to be seized.

SEC. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order
of the court, or when public policy or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.

Once again, Eugenio29 offers guidance:

The Court's construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy
considerations. If sustained, petitioner's argument that a bank account may be inspected by the government
following an ex parte proceeding about which the depositor would know nothing would have significant
implications on the right to privacy, a right innately cherished by all notwithstanding the legally recognized
exceptions thereto. The notion that the government could be so empowered is cause for concern of any
individual who values the right to privacy which, after all, embodies even the right to be "let alone," the
most comprehensive of rights and the right most valued by civilized people.

One might assume that the constitutional dimension of the right to privacy, as applied to bank deposits,
warrants our present inquiry. We decline to do so. Admittedly, that question has proved controversial in
American jurisprudence. Notably, the United States Supreme Court in U.S. v. Miller held that there
was no legitimate expectation of privacy as to the bank records of a depositor. Moreover, the text
of our Constitution has not bothered with the triviality of allocating specific rights peculiar to
bank deposits.

However, sufficient for our purposes, we can assert there is a right to privacy governing bank accounts in
the Philippines, and that such right finds application to the case at bar. The source of such right is statutory,
expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is
enshrined in Section 2 of that law, to wit:

SECTION 2. All deposits of whatever nature with banks or banking institutions in the Philippines
including investments in bonds issued by the Government of the Philippines, its political
subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person, government official, bureau or
office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a
competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money
deposited or invested is the subject matter of the litigation.

Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the
Philippines. Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet
the secrecy of bank deposits still lies as the general rule. It falls within the zones of privacy recognized by
our laws. The framers of the 1987 Constitution likewise recognized that bank accounts are not covered by
either the right to information under Section 7, Article III or under the requirement of full public disclosure
under Section 28, Article II. Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged
to conserve the absolutely confidential nature of Philippine bank deposits.

Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the Bank
Secrecy Act itself prescribes exceptions whereby these bank accounts may be examined by "any person,
government official, bureau or office"; namely when: (1) upon written permission of the depositor; (2) in
cases of impeachment; (3) the examination of bank accounts is upon order of a competent court in cases of
bribery or dereliction of duty of public officials; and (4) the money deposited or invested is the subject
matter of the litigation. Section 8 of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices Act, has been
recognized by this Court as constituting an additional exception to the rule of absolute confidentiality, and
there have been other similar recognitions as well.
The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may inquire into a
bank account upon order of any competent court in cases of violation of the AMLA, it having been
established that there is probable cause that the deposits or investments are related to unlawful activities as
defined in Section 3(i) of the law, or a money laundering offense under Section 4 thereof. Further, in
instances where there is probable cause that the deposits or investments are related to kidnapping for
ransom, certain violations of the Comprehensive Dangerous Drugs Act of 2002, hijacking and other
violations under R.A. No. 6235, destructive arson and murder, then there is no need for the AMLC to obtain
a court order before it could inquire into such accounts.

It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11 of the
AMLA is a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is when "the
money deposited or invested is the subject matter of the litigation." The orientation of the bank inquiry
order is simply to serve as a provisional relief or remedy. As earlier stated, the application for such does not
entail a full-blown trial.

Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it does not
mean that the later law has dispensed with the general principle established in the older law that "[a]ll
deposits of whatever nature with banks or banking institutions in the Philippines x x x are hereby considered
as of an absolutely confidential nature." Indeed, by force of statute, all bank deposits are absolutely
confidential, and that nature is unaltered even by the legislated exceptions referred to above. There is
disfavor towards construing these exceptions in such a manner that would authorize unlimited discretion on
the part of the government or of any party seeking to enforce those exceptions and inquire into bank
deposits. If there are doubts in upholding the absolutely confidential nature of bank deposits against
affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the
former. Such a stance would persist unless Congress passes a law reversing the general state policy of
preserving the absolutely confidential nature of Philippine bank accounts. (Citations omitted, emphasis
supplied)

From the foregoing disquisition, we extract the following principles:

1. The Constitution did not allocate specific rights peculiar to bank deposits;

2. The general rule of absolute confidentiality is simply statutory, 30i.e. not specified in the Constitution,
which has been affirmed in jurisprudence;31

3. Exceptions to the general rule of absolute confidentiality have been carved out by the Legislature which
legislation have been sustained, albeit subjected to heightened scrutiny by the courts; 32 and

4. One such legislated exception is Section 11 of the AMLA.

The warning in Eugenio that an ex-parte proceeding authorizing the government to inspect certain bank
accounts or investments without notice to the depositor would have significant implications on the right to
privacy still does not preclude such a bank inquiry order to be allowed by specific legislation as an exception
to the general rule of absolute confidentiality of bank deposits.

We thus subjected Section 11 of the AMLA to heightened scrutiny and found nothing arbitrary in the
allowance and authorization to AMLC to undertake an inquiry into certain bank accounts or deposits.
Instead, we found that it provides safeguards before a bank inquiry order is issued, ensuring adherence to
the general state policy of preserving the absolutely confidential nature of Philippine bank accounts:

(1) The AMLC is required to establish probable cause as basis for its ex-parte application for bank inquiry
order;

(2) The CA, independent of the AMLC's demonstration of probable cause, itself makes a finding of probable
cause that the deposits or investments are related to an unlawful activity under Section 3(i) or a money
laundering offense under Section 4 of the AMLA;
(3) A bank inquiry court order ex-parte for related accounts is preceded by a bank inquiry court order ex-
parte for the principal account which court order ex-parte for related accounts is separately based on
probable cause that such related account is materially linked to the principal account inquired into; and

(4) The authority to inquire into or examine the main or principal account and the related accounts shall
comply with the requirements of Article III, Sections 2 and 3 of the Constitution.

The foregoing demonstrates that the inquiry and examination into the bank account are not undertaken
whimsically and solely based on the investigative discretion of the AMLC. In particular, the requirement of
demonstration by the AMLC, and determination by the CA, of probable cause emphasizes the limits of such
governmental action. We will revert to these safeguards under Section 11 as we specifically discuss the CA's
denial of SPCMB's letter request for information concerning the purported issuance of a bank inquiry order
involving its accounts.

First. The AMLC and the appellate court are respectively required to demonstrate and ascertain probable
cause. Ret. Lt. Gen. Ligot, et al. v. Republic of the Philippines,33 which dealt with the adjunct provisional
remedy of freeze order under Section 10 of the AMLA, defined probable cause, thus:

The probable cause required for the issuance of a freeze order differs from the probable cause required for
the institution of a criminal action, xxx.

As defined in the law, the probable cause required for the issuance of a freeze order refers to "such facts
and circumstances which would lead a reasonably discreet, prudent or cautious man to believe that an
unlawful activity and/or money laundering offence is about to be, is being or has been committed and
that the account or any monetary instrument or property subject thereof sought to be frozen is in
any way related to said unlawful activity and/or money laundering offense."

In other words, in resolving the issue of whether probable cause exits, the CA's statutorily-guided
determination's focus is not on the probable commissions of an unlawful activity (or money laundering) that
the office of the Ombudsman has already determined to exist, but on whether the bank accounts, assets, or
other monetary instruments sought to be frozen are in any way related to any of the illegal activities
enumerated under R.A. 9160, as amended. Otherwise stated, probable cause refers to the sufficiency of the
relation between an unlawful activity and the property or monetary instrument which is the focal point of
Section 10 of RA No. 9160, as amended. xxx. (Emphasis supplied)

Second. As regards SPCMB's contention that the bank inquiry order is in the nature of a general
warrant, Eugenio already declared that Section 11, even with the allowance of an ex parte application
therefor, "is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure
of persons or property."34 It bears repeating that the ''bank inquiry order" under Section 11 is a provisional
remedy to aid the AMLC in the enforcement of the AMLA.

Third. Contrary to the stance of SPCMB, the bank inquiry order does not contemplate that SPCMB be first
impleaded in a money laundering case already filed before the courts:

We are unconvinced by this proposition, and agree instead with the then Solicitor General who conceded
that the use of the phrase "in cases of' was unfortunate, yet submitted that it should be interpreted to mean
"in the event there are violations" of the AMLA, and not that there are already cases pending in court
concerning such violations. If the contrary position is adopted, then the bank inquiry order would be limited
in purpose as a tool in aid of litigation of live cases, and wholly inutile as a means for the government to
ascertain whether there is sufficient evidence to sustain an intended prosecution of the account holder for
violation of the AMLA. Should that be the situation, in all likelihood the AMLC would be virtually deprived of
its character as a discovery tool, and thus would become less circumspect in filing complaints against
suspect account holders. After all, under such set-up the preferred strategy would be to allow or even
encourage the indiscriminate filing of complaints under the AMLA with the hope or expectation that the
evidence of money laundering would somehow .surface during the trial. Since the AMLC could not make use
of the bank inquiry order to determine whether there is evidentiary basis to prosecute the suspected
malefactors, not filing any case at all would not be an alternative. Such unwholesome set-up should not
come to pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it has
established and encourage the unfounded initiation of complaints for money laundering. 35 (Citation omitted)
Guided as we are by prior holdings, and bound as we are by the requirements for issuance of a bank inquiry
order under Section 11 of the AMLA, we are hard pressed to declare that it violates SPCMB's right to privacy.

Nonetheless, although the bank inquiry order ex-parte passes constitutional muster, there is nothing in
Section 11 nor the implementing rules and regulations of the AMLA which prohibits the owner of the bank
account, as in his instance SPCMB, to ascertain from the CA, post issuance of the bank inquiry order ex-
parte, if his account is indeed the subject of an examination. Emphasized by our discussion of the
safeguards under Section 11 preceding the issuance of such an order, we find that there is nothing therein
which precludes the owner of the account from challenging the basis for the issuance thereof.

The present controversy revolves around the issue of whether or not the appellate court, through the
Presiding Justice, gravely abused its discretion when it effectively denied SPCMB's letter-request for
confirmation that the AMLC had applied (ex-parte) for, and was granted, a bank inquiry order to examine
SPCMB's bank accounts relative to the investigation conducted on Vice-President Binay's accounts.

We recall the Presiding Justice's letter to SPCMB categorically stating that "under the rules, the Office of the
Presiding Justice is strictly mandated not to disclose, divulge, or communicate to anyone directly or
indirectly, in any manner or by any means, the fact of the filing of the petition brought before [the Court of
Appeals] by the [AMLC], its contents and even its entry in the logbook." Note that the letter did not cite the
aforementioned rules that were supposedly crystal clear to foreclose ambiguity. Note further that Rules
10.c.3 and 10.d of the IRR on Authority to File Petitions for Freeze Order provides that:

Rule 10.c. Duty of Covered Institutions upon receipt thereof. —

Rule 10.c.1. Upon receipt of the notice of the freeze order, the covered institution concerned shall
immediately freeze the monetary instrument or property and related accounts subject thereof.

Rule 10.c.2. The covered institution shall likewise immediately furnish a copy of the notice of the freeze
order upon the owner or holder of the monetary instrument or property or related accounts subject thereof.

Rule 10.c.3. Within twenty-four (24) hours from receipt of the freeze order, the covered institution
concerned shall submit to the Court of Appeals and the AMLC, by personal delivery, a detailed written return
on the freeze order, specifying all the pertinent and relevant information which shall include the following:

(a) the account numbers;

(b) the names of the account owners or holders;
(c) the amount of the monetary instrument, property or related accounts as of the time they were frozen;
(d) all relevant information as to the nature of the monetary instrument or property;
(e) any information on the related accounts pertaining to the monetary instrument or property subject of
the freeze order; and
(f) the time when the freeze thereon took effect.

Rule 10.d. Upon receipt of the freeze order issued by the Court of Appeals and upon verification by the
covered institution that the related accounts originated from and/or are materially linked to the monetary
instrument or property subject of the freeze order, the covered institution shall freeze these related
accounts wherever these may be found.

The return of the covered institution as required under Rule 10.c.3 shall include the fact of such freezing and
an explanation as to the grounds for the identification of the related accounts.

If the related accounts cannot be determined within twenty-four (24) hours from receipt of the freeze order
due to the volume and/or complexity of the transactions or any other justifiable factor(s), the covered
institution shall effect the freezing of the related accounts, monetary instruments and properties as soon as
practicable and shall submit a supplemental return thereof to the Court of Appeals and the AMLC within
twenty-four (24) hours from the freezing of said related accounts, monetary instruments and properties.

The foregoing rule, in relation to what Section 11 already provides, signifies that ex-parte bank inquiry
orders on related accounts may be questioned alongside, albeit subsequent to, the issuance of the initial
freeze order of the subject bank accounts. The requirements and procedure for the issuance of the order,
including the return to be made thereon lay the grounds for judicial review thereof. We expound.

An act of a court or tribunal can only be considered tainted with grave abuse of discretion when such act is
done in a capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. It is well-
settled that the abuse of discretion to be qualified as "grave" must be so patent or gross as to constitute an
evasion of a positive duty or a virtual refusal to perform the duty or to act at all in contemplation of law. 36 In
this relation, case law states that not every error in the proceedings, or every erroneous conclusion of law or
fact, constitutes grave abuse of discretion.37 The degree of gravity, as above-described, must be met.

That the propriety of the issuance of the bank inquiry order is a justiciable issue brooks no argument. A
justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial
determination, not one that is conjectural or merely anticipatory. 38

As previously adverted to in our discussion on the right to privacy, the clash of privacy rights and interest
against that of the government's is readily apparent. However, the statutorily enshrined general rule on
absolute confidentiality of bank accounts remains. Thus, the safeguards instituted in Section II of the AMLA
and heretofore discussed provide for certain well defined limits, as in the language of Baker v. Carr,
"judicially discoverable standards" for determining the validity of the exercise of such discretion by the
appellate court in denying the letter-request of SPCMB. 39 In short, Section II itself provides the basis for the
judicial inquiry and which the owner of the bank accounts subject of the AMLC inquiry may invoke.

Undeniably, there is probable and preliminary governmental action against SPCMB geared towards
implementation of the AMLA directed at SPCMB's property, although there is none, as yet, physical seizure
thereof, as in freezing of bank accounts under Section 10 of the AMLA. 40 Note, however, that the allowance
to question the bank inquiry order we carve herein is tied to the appellate court's issuance of a freeze order
on the principal accounts. Even in Eugenio, while declaring that the bank inquiry order under Section II then
required prior notice of such to the account owner, we recognized that the determination of probable cause
by the appellate court to issue the bank inquiry order can be contested. As presently worded and how AMLC
functions are designed under the AMLA, the occasion for the issuance of the freeze order upon the actual
physical seizure of the investigated and inquired into bank account, calls into motions the opportunity for the
bank account owner to then question, not just probable cause for the issuance of the freeze order under
Section I 0, but, to begin with, the determination of probable cause for an ex-parte bank inquiry order into a
purported related account under Section II.

In enacting the amendment to Section II of the AMLC, the legislature saw it fit to place requirements before
a bank inquiry order may be issued. We discussed these requirements as basis for a valid exception to the
general rule on absolute confidentiality of bank accounts. However, these very safe guards allow SPCMB,
post issuance of the ex-parte bank inquiry order, legal bases to question the propriety of such issued order,
if any. To emphasize, this allowance to the owner of the bank account to question the bank inquiry order is
granted only after issuance of the freeze order physically seizing the subject bank account. It cannot be
undertaken prior to the issuance of the freeze order.

While no grave abuse of discretion could be ascribed on the part of the appellate court when it explained in
its letter that petitions of such nature "is strictly confidential in that when processing the same, not even
the handling staff members of the Office of the Presiding Justice know or have any knowledge who the
subject bank account holders are, as well as the bank accounts involved," it was incorrect when it declared
that "under the rules, the Office of the Presiding Justice is strictly mandated not to disclose, divulge, or
communicate to anyone directly or indirectly, in any manner or by any means, the fact of the filing of any
petition brought before [the Court of Appeals] by the Anti-Money Laundering Council, its contents and even
its entry in the logbook." As a result, the appellate court effectively precluded and prevented SPCMB of any
recourse, amounting to a denial of SPCMB's letter request.

We cannot overemphasize that SPCMB, as the owner of the bank account which may be the subject of
inquiry of the AMLC, ought to have a legal remedy to question the validity and propriety of such an order by
the appellate court under Section 11 of the AMLA even if subsequent to the issuance of a freeze order.
Moreover, given the scope of inquiry of the AMLC, reaching and including even related accounts, which
inquiry into specifies a proviso that: "[t]hat the procedure for the ex-parte application of the ex-partecourt
order for the principal account shall be the same with that of the related accounts," SPCMB should be
allowed to question the government intrusion. Plainly, by implication, SPCMB can demonstrate the absence
of probable cause, i.e. that it is not a related account nor are its accounts materially linked to the principal
account being investigated.41

In BSB Group, Inc. v. Go,42 we recounted the objective of the absolute confidentiality rule which is
protection from unwarranted inquiry or investigation if the purpose of such inquiry or investigation is merely
to determine the existence and nature, as well as the amount of the deposit in any given bank account:

xxx. There is, in fact, much disfavor to construing these primary and supplemental exceptions in a manner
that would authorize unbridled discretion, whether governmental or otherwise, in utilizing these exceptions
as authority for unwarranted inquiry into bank accounts. It is then perceivable that the present legal order is
obliged to conserve the absolutely confidential nature of bank deposits.

The measure of protection afforded by the law has been explained in China Banking Corporation v.
Ortega. That case principally addressed the issue of whether the prohibition against an examination of bank
deposits precludes garnishment in satisfaction of a judgment. Ruling on that issue in the negative, the Court
found guidance in the relevant portions of the legislative deliberations on Senate Bill No. 351 and House Bill
No. 3977, which later became the Bank Secrecy Act, and it held that the absolute confidentiality rule in R.A.
No. 1405 actually aims at protection from unwarranted inquiry or investigation if the purpose of such inquiry
or investigation is merely to determine the existence and nature, as well as the amount of the deposit in any
given bank account. Thus,

x x x The lower court did not order an examination of or inquiry into the deposit of B&B Forest Development
Corporation, as contemplated in the law. It merely required Tan Kim Liong to inform the court whether or
not the defendant B&B Forest Development Corporation had a deposit in the China Banking Corporation only
for purposes of the garnishment issued by it, so that the bank would hold the same intact and not allow any
withdrawal until further order. It will be noted from the discussion of the conference committee report on
Senate Bill No. 351 and House Bill No. 3977 which later became Republic Act No. 1405, that it was not the
intention of the lawmakers to place banks deposits beyond the reach of execution to satisfy a final judgment
Thus:
x x x Mr. Marcos: Now, for purposes of the record, I should like the Chairman of the Committee on Ways
and Means to clarify this further. Suppose an individual has a tax case. He is being held liable by the Bureau
of Internal Revenue [(BIR)] or, say, P1,000.00 worth of tax liability, and because of this the deposit of this
individual [has been] attached by the [BIR].

Mr. Ramos: The attachment will only apply after the court has pronounced sentence declaring the liability of
such person. But where the primary aim is to determine whether he has a bank deposit in order to bring
about a proper assessment by the [BIR], such inquiry is not allowed by this proposed law.

Mr. Marcos: But under our rules of procedure and under the Civil Code, the attachment or garnishment of
money deposited is allowed. Let us assume for instance that there is a preliminary attachment which is for
garnishment or for holding liable all moneys deposited belonging to a certain individual, but such attachment
or garnishment will bring out into the open the value of such deposit. Is that prohibited by... the law?

Mr. Ramos: It is only prohibited to the extent that the inquiry... is made only for the purpose of satisfying a
tax liability already declared for the protection of the right in favor of the government; but when the object
is merely to inquire whether he has a deposit or not for purposes of taxation, then this is fully covered by
the law. x x x

Mr. Marcos: The law prohibits a mere investigation into the existence and the amount of the deposit.

Mr. Ramos: Into the very nature of such deposit. x x x (Citations omitted)

What is reflected by the foregoing disquisition is that the law plainly prohibits a mere investigation into the
existence and the amount of the deposit. We relate the principle to SPCMB's relationship to the reported
principal account under investigation, one of its clients, former Vice President Binay. SPCMB as the owner of
one of the bank accounts reported to be investigated by the AMLC for probable money laundering offenses
should be allowed to pursue remedies therefrom where there are legal implications on the inquiry into its
accounts as a law firm. While we do not lapse into conjecture and cannot take up the lance for SPCMB on
probable violation of the attorney-client privilege based on pure speculation, the extent of information
obtained by the AMLC concerning the clients of SPCMB has not been fully drawn and sufficiently
demonstrated. At the same time, the owner of bank accounts that could be potentially affected has the right
to challenge whether the requirements for issuance of the bank inquiry order were indeed complied with
given that such has implications on its property rights. In this regard, SPCMB's obeisance to promulgated
rules on the matter could have afforded it a remedy, even post issuance of the bank inquiry order.

Rule 10.b. of the IRR defines probable cause as "such facts and circumstances which would lead a
reasonably discreet, prudent or cautious man to believe that an unlawful activity and/or a money laundering
offense is about to be, is being or has been committed and that the account or any monetary instrument or
property sought to be frozen is in any way related to said unlawful activity and/or money laundering
offense." Evidently, the provision only refers to probable cause for freeze orders under Section 10 of the
AMLA. From this we note that there is a glaring lacunae in our procedural rules concerning the bank inquiry
order under Section 11. Despite the advent of RA No. 10167, amending Section 11 of the AMLA, we have
yet to draft additional rules corresponding to the ex-parte bank inquiry order under Section 11. A.M. No. 05-
11-04-SC entitled "Rule of Procedure in Cases of Civil Forfeiture, Asset Preservation, and Freezing of
Monetary Instrument, Property, or Proceeds Representing, Involving, or Relating to an Unlawful Activity or
Money Laundering Offense Under Republic Act No. 9160, as Amended," only covers what is already provided
in the title. As we have already noted, the bank inquiry order must likewise be governed by rules specific to
its issuance where the AMLC regularly invokes this provision and which, expectedly clashes with the rights of
bank account holders.

Apart from Section 2, Rule IV of the 2009 Internal Rules of the CA (IRCA) reads:

SEC. 2. Action by the Presiding Justice or Executive Justice. — When a petition involves an urgent
matter, such as an application for writ of habeas corpus, amparo or habeas data or for temporary
restraining order, and there is no way of convening the Raffle Committee or calling any of its members, the
Presiding Justice or the Executive Justice, as the case may be, or in his/her absence, the most senior Justice
present, may conduct the raffle or act on the petition, subject to raffle in the latter case on the next working
day in accordance with Rule III hereof.

(AMLA cases are limited to the first three most senior Justices as stated in the law and are raffled
by the Chairmen of the First, Second and Third Divisions to the members of their Divisions only.)

Nothing in the IRCA justifies the disallowance to SPCMB of information and/or court records or proceedings
pertaining to the possible bank inquiry order covering its bank deposits or investment.

We note that the Presiding Justice's reply to the request for comment of SPCMB on the existence of a
petition for bank inquiry order by the AMLC covering the latter's account only contemplates the provisions of
Section 10 of the AMLA, its IRR and the promulgated rules thereon. Such immediate and definitive
foreclosure left SPCMB with no recourse on how to proceed from what it perceived to be violation of its
rights as owner of the bank account examined. The reply of the Presiding Justice failed to take into
consideration Section 54 of A.M. No. 05-11-04-SC on Notice of Freeze Order which reads:

SEC. 54. Notice of freeze order.- The Court shall order that notice of the freeze order be served personally,
in the same manner provided for the service of the asset preservation order in Section 14 of this Rule, upon
the respondent or any person acting in his behalf and such covered institution or government agency. The
court shall notify also such party in interest as may have appeared before the court. (Emphasis
supplied)

We relate this Section 54 to the already cited Rule 10.d of the IRR

Rule 10.d. Upon receipt of the freeze order issued by the Court of Appeals and upon verification by the
covered institution that the related accounts originated from and/or are materially linked to the monetary
instrument or property subject of the freeze order, the covered institution shall freeze these related
accounts wherever these may be found.

The return of the covered institution as required under Rule 10.c.3 shall include the fact of such
freezing and an explanation as to the grounds for the identification of the related accounts.
If the related accounts cannot be determined within twenty-four (24) hours from receipt of the
freeze order due to the volume and/or complexity of the transactions or any other justifiable
factor(s), the covered institution shall effect the freezing of the related accounts, monetary
instruments and properties as soon as practicable and shall submit a supplemental return thereof
to the Court of Appeals and the AMLC within twenty-four (24) hours from the freezing of said
related accounts, monetary instruments and properties. (Emphasis supplied)

demonstrating that the return of the Freeze Order must provide an explanation as to the grounds for the
identification of the related accounts, or the requirement of notice to a party in interest affected thereby
whose bank accounts were examined. This necessarily contemplates the procedure for a prior bank inquiry
order which we ought to provide for.

For exact reference, we cite A.M. No. 05-11-04-SC, Title VIII on Petitions for Freeze Order in the CA which
certain pertinent provisions we adopt and apply suppletorily as a separate Title on Petitions for Bank Inquiry
Order:

TITLE VIII
PETITIONS FOR FREEZE ORDER IN THE COURT OF APPEALS

SEC. 43. Applicability. - This Rule shall apply to petitions for freeze order in the Court of Appeals. The 2002
Internal Rules of the Court of Appeals, as amended, shall apply suppletorily in all other aspects.

xxxx

SEC. 46. Contents of the petition. - The petition shall contain the following allegations:

(a) The name and address of the respondent;

(b) A specific description with particularity of the monetary instrument,
property or proceeds, their location, the name of the owner, holder,
lienholder or possessor, if known;
(c) The grounds relied upon for the issuance of a freeze order; and
(d) The supporting evidence showing that the subject monetary
instrument, property, or proceeds are in any way related to or
involved in an unlawful activity as defined under Section 3(i) of
Republic Act No. 9160, as amended by Republic Act No. 9194.
The petition shall be filed in seven clearly legible copies and shall be
accompanied by clearly legible copies of supporting documents duly
subscribed under oath.

xxxx

SEC. 49. Confidentiality; prohibited disclosure. - The logbook and the entries therein shall be kept strictly
confidential and maintained under the responsibility of the Presiding Justice or the Executive Justices, as the
case may be. No person, including Court personnel, shall disclose, divulge or communicate to anyone
directly or indirectly, in any manner or by any means, the fact of the filing of the petition for freeze order, its
contents and its entry in the logbook except to those authorized by the Court. Violation shall constitute
contempt of court.

xxxx
SEC. 51. Action by the Court of Appeals.- All members of the Division of the Court to which the assigned
justice belongs shall act on the petition within twenty-four hours after its filing. However, if one member of
the Division is not available, the assigned justice and the other justice present shall act on the petition. If
only the assigned justice is present, he shall act alone. The action of the two justices or of the assigned
justice alone, as the case may be, shall be forthwith promulgated and thereafter submitted on the next
working day to the absent member or members of the Division for ratification, modification or recall.

If the Court is satisfied from the verified allegations of the petition that there exists probable cause that the
monetary instrument, property, or proceeds are in any way related to or involved in any unlawful activity as
defined in Section 3(i) of Republic Act No. 9160, as amended by Republic Act No. 9194, it shall issue ex
parte a freeze order as hereinafter provided.

If the Court finds no substantial merit in the petition, it shall dismiss the petition outright, stating the
specific reasons for such dismissal.

When the unanimous vote of the three justices of the Division cannot be obtained, the Presiding Justice or
the Executive Justice shall designate two justices by raffle from among the other justices of the first three
divisions to sit temporarily with them forming a special division of five justices. The concurrence of a
majority of such special division shall be required for the pronouncement of a judgment or resolution.

SEC. 52. Issuance, form and contents of the freeze order - The freeze order shall:

(a) issue in the name of the Republic of the Philippines represented by the
Anti-Money Laundering Council;
(b) describe with particularity the monetary instrument, property or
proceeds frozen, as well as the names of their owner or owners; and
(c) direct the person or covered institution to immediately freeze the
subject monetary instrument, property or proceeds or its related web
of accounts.

SEC. 53. Freeze order.

(a) Effectivity; post issuance hearing. - The freeze order shall be effective
immediately for a period of twenty days. Within the twenty-day
period, the court shall conduct a summary hearing, with notice to the
parties, to determine whether or not to modify or lift the freeze order,
or extend its effectivity as hereinafter provided.
(b) Extension. - On motion of the petitioner filed before the expiration of
twenty days from issuance of a freeze order, the court may for good
cause extend its effectivity for a period not exceeding six months.

SEC. 54. Notice of freeze order.- The Court shall order that notice of the freeze order be served personally,
in the same manner provided for the service of the asset preservation order in Section 14 of this Rule, upon
the respondent or any person acting in his behalf and such covered institution or government agency. The
court shall notify also such party in interest as may have appeared before the court.

SEC. 55. Duty of respondent, covered institution or government agency upon receipt of freeze order. - Upon
receipt of a copy of the freeze order, the respondent, covered institution or government agency shall
immediately desist from and not allow any transaction, withdrawal, deposit, transfer, removal, conversion,
other movement or concealment the account representing, involving or relating to the subject monetary
instrument, property, proceeds or its related web of accounts.

SEC. 56. Consolidation with the pending civil forfeiture proceedings - After the post-issuance hearing
required in Section 53, the Court shall forthwith remand the case and transmit the records to the regional
trial court for consolidation with the pending civil forfeiture proceeding.

SEC. 57. Appeal.- Any party aggrieved by the decision or ruling of the court may appeal to the Supreme
Court by petition for review on certiorari under Rule 45 of the Rules of Court. The appeal shall not stay the
enforcement of the subject decision or final order unless the Supreme Court directs otherwise.

A reverse situation affords us a clearer picture of the arbitrary and total preclusion of SPCMB to question the
bank inquiry order of the appellate court. In particular, in an occasion where the appellate court denies the
AMLC's ex-parte application for a bank inquiry order under Section 11, the AMLC can question this denial
and assail such an order by the appellate court before us on grave abuse of discretion. Among others, the
AMLC can demonstrate that it has established probable cause for its issuance, or if the situation
contemplates a denial of an application for a bank inquiry order into a related account, the AMLC can
establish that the account targeted is indeed a related account. The resolution on these factual and legal
issues ought to be reviewable, albeit post issuance of the Freeze Order, akin to the provision of an Appeal to
the Supreme Court under Section 57 of A.M. No. 05-11-04-SC.

Palpably, the requirement to establish probable cause is not a useless supposition. To establish and
demonstrate the required probable cause before issuance of the bank inquiry and the freeze orders is a
screw on which the AMLC's intrusive functions turns. We are hard pressed to justify a disallowance to an
aggrieved owner of a bank account to avail of remedies.

That there are no specific rules governing the bank inquiry order does not signify that the CA cannot confirm
to the actual owner of the bank account reportedly being investigated whether it had in fact issued a bank
inquiry order for covering its accounts, of course after the issuance of the Freeze Order. Even in Ligot,43 we
held that by implication, where the law did not specify, the owner of the "frozen" property may move to lift
the freeze order issued under Section 10 of the AMLA if he can show that no probable cause exists or the
20-day period of the freeze order has already lapsed without any extension being requested from and
granted by the CA. Drawing a parallel, such a showing of the absence of probable cause ought to be
afforded SPCMB.

Ligot clarifies that "probable cause refers to the sufficiency of the relation between an unlawful activity and
the property or monetary instrument which is the focal point of Section 10 of the AMLA, as amended." This
same probable cause is likewise the focal point in a bank inquiry order to further determine whether the
account under investigation is linked to unlawful activities and/or money laundering offense. Thus, the
specific applicability of Sections 52, 53, 54 and 57 Title VIII of A.M. No. 05-11-04-SC covering the following:
(1) Issuance, Form and Content of the Freeze Order; (2) Effectivity of the Freeze Order and Post Issuance
Hearing thereon; (3) Notice of the Freeze Order; and (4) Appeal from the Freeze Order as separate Rules for
Petitions to Question the Bank Inquiry Order. And as held in Eugenio which now applies to the present
Section 11 of the AMLA:

Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order
under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to
effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to
authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11.
xxx.44

The cited rules cover and approximate the distinction made by Eugenio in declaring that the bank inquiry
order is not a search warrant, and yet there are instituted requirements for the issuance of these orders
given that such is now allowed ex-parte:

The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants that
are not imposed by the AMLA with respect to bank inquiry orders. A constitutional warrant requires that the
judge personally examine under oath or affirmation the complainant and the witnesses he may produce,
such examination being in the form of searching questions and answers. Those are impositions which the
legislative did not specifically prescribe as to the bank inquiry order under the AMLA and we cannot find
sufficient legal basis to apply them to Section 11 of the AMLA. Simply put, a bank inquiry order is not a
search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or
property.

Even as the Constitution and the Rules of Court impose a high procedural standard for the determination of
probable cause for the issuance of search warrants which Congress chose not to prescribe for the bank
inquiry order under the AMLA, Congress nonetheless disallowed ex parte applications for the inquiry order.
We can discern that in exchange for these procedural standards normally applied to search warrants,
Congress chose instead to legislate a right to notice and a right to be heard — characteristics of judicial
proceedings which are not ex parte. Absent any demonstrable constitutional infirmity, there is no reason for
us to dispute such legislative policy choices.45

Thus, as an ex-parte bank inquiry order which Congress has now specifically allowed, the owner of a bank
account post issuance of the freeze order has an opportunity under the Rules to contest the establishment of
probable cause.

Again, we cannot avoid the requirement-limitation nexus in Section 11. As it affords the government
authority to pursue a legitimate state interest to investigate money laundering offenses, such likewise
provides the limits for the authority given. Moreover, allowance to the owner of the bank account, post
issuance of the bank inquiry order and the corresponding freeze order, of remedies to question the order,
will not forestall and waylay the government's pursuit of money launderers. That the bank inquiry order is a
separate from the freeze order does not denote that it cannot be questioned. The opportunity is still rife for
the owner of a bank account to question the basis for its very inclusion into the investigation and the
corresponding freezing of its account in the process.

As noted in Eugenio, such an allowance accorded the account holder who wants to contest the issuance of
the order and the actual investigation by the AMLC, does not cast an unreasonable burden since the bank
inquiry order has already been issued. Further, allowing for notice to the account holder should not, in any
way, compromise the integrity of the bank records subject of the inquiry which remain in the possession and
control of the bank. The account holder so notified remains unable to do anything to conceal or cleanse his
bank account records of suspicious or anomalous transactions, at least not without the whole hearted
cooperation of the bank, which inherently has no vested interest to aid the account holder in such manner.
Rule 10.c.46 of the IRR provides for Duty of the Covered Institution receiving the Freeze Order. Such can
likewise be made applicable to covered institutions notified of a bank inquiry order.

On the other hand, a scenario where SPCMB or any account holder under examination later shows that the
bank inquiry order was without the required probable cause, the information obtained through the account
reverts to, and maintains, its confidentiality. In short, any and all information obtained therein by the AMLC
remains confidential, as if no examination or inquiry on the bank account or investments was undertaken.
The foregoing consequence can be added as a Section in the Rules entitled "Effect of absence of probable
cause."

All told, we affirm the constitutionality of Section 11 of the AMLA allowing the ex-parte application by the
AMLC for authority to inquire into, and examine, certain bank deposits and investments.

Section 11 of the AMLA providing for the ex-parte bank deposit inquiry is constitutionally firm for the
reasons already discussed. The ex-parte inquiry shall be upon probable cause that the deposits or
investments are related to an unlawful activity as defined in Section 3(i) of the law or a money laundering
offense under Section 4 of the same law. To effect the limit on the ex-parte inquiry, the petition under oath
for authority to inquire, must, akin to the requirement of a petition for freeze order enumerated in Title VIII
of A.M. No. 05-11-04-SC, contain the name and address of the respondent; the grounds relied upon for the
issuance of the order of inquiry; and the supporting evidence that the subject bank deposit are in any way
related to or involved in an unlawful activity.

If the CA finds no substantial merit in the petition, it shall dismiss the petition outright stating the specific
reasons for such denial. If found meritorious and there is a subsequent petition for freeze order, the
proceedings shall be governed by the existing Rules on Petitions for Freeze Order in the CA. From the
issuance of a freeze order, the party aggrieved by the ruling of the court may appeal to the Supreme Court
by petition for review on certiorari under Rule 45 of the Rules of Court raising all pertinent questions of law
and issues, including the propriety of the issuance of a bank inquiry order. The appeal shall not stay the
enforcement of the subject decision or final order unless the Supreme Court directs otherwise. The CA is
directed to draft rules based on the foregoing discussions to complement the existing A.M. No. 05-11-04-SC
Rule of Procedure in Cases of Civil Forfeiture, Asset Preservation, and Freezing of Monetary Instrument,
Property, or Proceeds Representing, Involving, or Relating to an Unlawful Activity or Money Laundering
Offense under Republic Act No. 9160, as Amended for submission to the Committee on the Revision of the
Rules of Court and eventual approval and promulgation of the Court en banc.

WHEREFORE, the petition is DENIED. Section 11 of Republic Act No. 9160, as amended, is
declared VALID and CONSTITUTIONAL.

SO ORDERED.