ACOSTA V. ADASA (G.R. No.
168617, February 19, 2007)
FACTS:
Cecille Abalos (defendant) filed two complaints against Bernadette Adasa (petitioner) for estafa.
The Office of the City Prosecutor found probable cause and files two criminal cases against
petitioner. The Trial Court ordered reinvestigation, but the prosecutor maintained that there is
probable cause.
After Adasa’s arraignment where she entered an unconditional plea of not guilty, she filed a
petition for review in the Department of Justice (DOJ).
The Secretary of Justice reversed the prosecutor’s resolution and ordered the withdrawal of the
case, which the trial court granted.
On 26 July 2002, respondent filed a motion for reconsideration should have dismissed outright
the petition for review since Section 7 of DOJ Circular No. 70. Respondent claimed Section 12
thereof mentions arraignment as one of the grounds for the dismissal of the petition for review
before the DOJ so the department should not take cognizance of the petition.
The DOJ denied the Motion for Reconsideration Section 12, in relation to Section 7, of DOJ
Circular No. 70. This is due to the permissive language "may" utilized in Section 12 whereby the
Secretary has the discretion to entertain an appealed resolution notwithstanding the fact that
the accused has been arraigned.
Meanwhile, the RTC issued an order granting the motion to withdraw information.
Aggrieved by the resolution of the DOJ, respondent filed a Petition for Certiorari before the
Court of Appeals.
The Court of Appeals (CA) reversed the dismissal of the Trial court claiming that Circular No. 70
expressly prohibits the Secretary of Justice from taking cognizance of a Petition for Review filed
after the accused has already been arraigned.
THE Court of Appeals opined that the permissive word "may" in Section 12 would seem to imply
that the Secretary of Justice has discretion to entertain an appeal notwithstanding the fact that
the accused has been arraigned. This provision should not be treated separately, but should be
read in relation to Section 7. The two provisions, taken together, simply meant that when an
accused was already arraigned when the aggrieved party files a petition for review, the
Secretary of Justice cannot, and should not take cognizance of the petition, or even give due
course thereto, but instead dismiss or deny it outright. The appellate court added that the word
"may" in Section 12 should be read as "shall" or "must" since such construction is absolutely
necessary to give effect to the apparent intention of the rule as gathered from the context.
Petitioner contends that the DOJ can give due course to an appeal or petition for review despite its
having been filed after the accused had already been arraigned. It asserts that the fact of arraignment of
an accused before the filing of an appeal or petition for review before the DOJ "is not at all relevant" as
the DOJ can still take cognizance of the appeal or Petition for Review before.
Petitioner asserts that the Court of Appeals' interpretation of the provisions of DOJ Circular No. 70
violated three basic rules in statutory construction. First, the rule that the provision that appears last in
the order of position in the rule or regulation must prevail. Second, the rule that the contemporaneous
construction of a statute or regulation by the officers who enforce it should be given weight. Third,
petitioner lifted a portion from Agpalo's Statutory Construction[ where the word "shall" had been
construed as a permissive, and not a mandatory language.
ISSUES:
(1) W/N THE WORD SHALL CAN BE CONSTRUED AS PERMISSIVE?
HELD: Petitioner's posture on a supposed exception to the mandatory import of the word "shall" is
misplaced
Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of the circular provides:
SECTION 7. Action on the petition. - The Secretary of Justice may dismiss the petition outright if he finds
the same to be patently without merit or manifestly intended for delay, or when the issues raised
therein are too unsubstantial to require consideration. If an information has been filed in court pursuant
to the appealed resolution, the petition shall not be given due course if the accused had already been
arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice
from exercising his power of review. (Italics supplied.)
On the other hand, Section 12 of the same circular states:
SECTION 12. Disposition of the Appeal. - The Secretary may reverse, affirm or modify the appealed
resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the
following grounds:
(a) That the petition was filed beyond the period prescribed in Section 3 hereof;
(b) That the procedure or any of the requirements herein provided has not been complied with;
(c) That there is no showing of any reversible error;
(d) That the appealed resolution is interlocutory in nature, except when it suspends the proceedings
based on the alleged existence of a prejudicial question;
(e) That the accused had already been arraigned when the appeal was taken;
(f) That the offense has already prescribed; and
(g) That other legal or factual grounds exist to warrant a dismissal. (Emphases supplied.)
The third rule of construction cited is lifted by the petitioner from a portion of Agpalo’s
Statutory Construction where the word “shall” had been construed as permissive, and not a
mandatory language. This interpretation is not applicable because if the intent of the
circular is to give discretionary power to the Secretary of Justice to entertain or dismiss a
petition, the result would be irrational or unjust, and would allow a great waste of time.
The Supreme Court upheld the CA’s judgment and denied Adasa’s claim that Section 7 and 12 should be
construed as granting the Secretary of Justice discretion on whether to take cognizance of an appeal or
not. The mandate of Section 71 and 122 are clear, and there is no conflict between the two provisions.
As such, both must be followed according to their letter. Therefore, the DOJ should not have taken
cognizance of Adasa’s appeal which she filed after she had already unconditionally pleaded not guilty.
She is deemed to have waived the right to preliminary investigation and the right to question any
irregularity that surrounds it, which is applicable in cases of reinvestigation
