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RULE 112

1. Yusop v. Sandiganbayan

THIRD DIVISION

[G.R. Nos. 138859-60. February 22, 2001]

ALVAREZ ARO YUSOP, petitioner, vs.  The Honorable SANDIGANBAYAN (First Division), respondent.

DECISION
PANGANIBAN, J.:
The right of a person to preliminary investigation is recognized by the law and is governed by the Rules of
Court. However, the failure to accord this right does not ipso facto  result in the dismissal of the information; the
case is merely suspended, and the prosecutor directed to conduct the proper investigation.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two Orders [1] of the
Sandiganbayan,[2] both dated February 15, 1999. The first Order rejected the attempt of petitioner to stop his
arraignment in Criminal Case Nos. 24524-25, on the ground that he had been denied the right to a preliminary
investigation. In the assailed second Order, the Sandiganbayan directed that a plea of not guilty be entered for all
the accused, including herein petitioner.

The Facts

Acting on an Affidavit-Complaint[3] filed by a certain Erlinda Fadri, the Office of the Ombudsman-Mindanao

issued an Order[4] dated September 19, 1995, naming the following as respondents: Benjamin Arao, Frederick
Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of Pagadian City.  The Order also
required respondents, within ten days from receipt thereof to submit their counter-affidavits and other pieces of
controverting evidence.
The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998, [5] recommending the
prosecution of the aforenamed respondents for violation of Article 269 of the Revised Penal Code and Section 3-a
in relation to Section 3-e of Republic Act No. 3019 as amended. Significantly, the name of Petitioner Alvarez A.
Yusop was included as one of the persons to be prosecuted, although he was not one of the original respondents
mentioned in the Order of September 19, 1995. Ombudsman Aniano A. Desierto approved the recommendation.
Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal Case Nos.
24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrest under Article 269 of the Revised Penal
Code).
On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No.
24524. Petitioner, however, posted a bail bond before the Regional Trial Court of Dipolog City on May 20 of the
same year. On the same day, he filed a Motion To Remand Case To The Ombudsman - Mindanao For Preliminary
Investigation.
In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his alleged failure
to submit himself to the jurisdiction of the anti-graft court.
On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of preliminary
investigation. In an Order dated September 22, 1998, the Sandiganbayan resolved not to take action on the Motion,

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because petitioner had not yet submitted himself to its jurisdiction insofar as Criminal Case No. 24525 was
concerned.
On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not been
accorded preliminary investigation. In its two assailed Orders, the Sandiganbayan rejected his claim and proceeded
with the arraignment.
Hence, this recourse.[6]

Ruling of the Sandiganbayan

The Sandiganbayan rejected petitioners plea for preliminary investigation in this wise:

This morning, the accused herein appeared for arraignment duly represented by their counsel. Before proceeding,
Atty. Omar A. Rivera appearing in behalf of accused Yusop informed this court of his reservations about proceeding
with the arraignment this morning, primarily on the ground that accused Yusop did not undergo preliminary
investigation, with the additional claim that he had not been furnished any notice nor was he informed of the
proceedings before the Ombudsman with respect to these cases. It would appear that one of the reasons [therefor]
is that the accused despite notice of the existence of the accusation against him in Criminal Case No. 24525, had
not given any timely notice nor any statement of any alleged inadequacy of the proceeding regarding the filing of
the Information herein; thus, the Court is not persuaded that the claim of the accused Yusop with regard to the
inadequacy of the proceedings as against him could still be validly entertained at this time. This is more particularly
significant under Section 27 of Republic Act 6770 and x x x Criminal Cases 24524 and 24525 refer to the same
incident although the prosecution, for its part, has filed Informations under different statutes covering the same
incident. Thus, the claim of accused Yusop that he was not notified with respect to one of the cases on an identical
set of facts herein is not [of] particular significance since this would be indulging in a superfluity.
x x x x x x x x x

Thus, in view of all the following, the Court will now proceed to the arraignment of the accused herein.

The Issue

Although the parties did not specify the issue in this case, it is clear from their submissions that they are asking
this Court to resolve this question: Whether the Sandiganbayan, despite being informed of the lack of preliminary
investigation with respect to petitioner, in Criminal Case No. 24524, committed grave abuse of discretion in
proceeding with his arraignment.

The Courts Ruling

The Petition is meritorious in part. While petitioner is entitled to preliminary investigation, the case against him
should not be dismissed.

Main Issue:
Preliminary Investigation

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to

engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and
should be held for trial.[7] The Court explained that the rationale of a preliminary investigation is to protect the
accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable
probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. [8]

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The Rules of Court requires such investigation before an information for an offense punishable by at least four
years, two months and one day may be filed in court. [9] The old Rules, on the other hand, mandates preliminary
investigation of an offense cognizable by the regional trial court. [10]
Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019. Such offense is
punishable with, among other penalties, imprisonment of six years and one month to fifteen years. [11] Under the
aforecited Rules, whether in the old or the revised version, he is entitled to a preliminary investigation.
It is undisputed, however, that before the Information against petitioner was filed, no preliminary investigation
had been conducted. In fact, the Office of the Ombudsman admitted that petitioner was denied of his right to
preliminary investigation.[12]
We find no basis for the Sandiganbayans ruling that petitioner had not given timely notice nor any statement of
the alleged inadequacy of the proceeding regarding the filing of the Information.
First, there was no showing that petitioner was notified of the charges filed by Erlinda Fadri. As earlier noted,
he had not been named as a respondent in the September 19, 1995 Order of the Office of the Ombudsman in
Mindanao. His name did not even appear in the caption of its January 15, 1998 Resolution, [13] which recommended
the filing of charges against the accused. Indeed, in his Compliance with the August 26, 1998 Sandiganbayan
Resolution,[14] Special Prosecution Officer Diosdado V. Calonge manifested that petitioner was not notified of the
proceedings of the preliminary investigation and was accordingly not given the opportunity to be heard thereon. [15]
After learning of the filing of the Information against him when he was served a Warrant of Arrest, petitioner did
not dally. He immediately informed the Sandiganbayan that no preliminary investigation had been conducted in
regard to him. Several months later, moments before his arraignment, he reiterated his prayer that the preliminary
investigation be conducted. In this light, the Sandiganbayan erred in saying that he had not given the court timely
notice of this deficiency.
Even assuming that prior to the filing of the Information, petitioner had known that the proceedings and the
investigation against his co-accused were pending, he cannot be expected to know of the investigators subsequent
act of charging him. Precisely, he had not been previously included therein and, consequently, he had not been
notified thereof.
In Go v. Court of Appeals,[16] this Court held that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment. Conversely, if the accused does
invoke it before arraignment, as the petitioner did in this case, the right is not waived.
Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary investigation.  Under
Section 26, Rule 114 of the Revised Rules of Criminal Procedure, [a]n application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided
that he raises them before entering his plea. x x x.
We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to
petitioner would deprive him of the full measure of his right to due process. [17] Hence, preliminary investigation with
regard to him must be conducted.
We disagree with the Sandiganbayans reliance on Section 27 of Republic Act 6770. [18] This provision cannot
justify the evasion of the requirement set forth in the Rules of Court for conducting preliminary investigation.  The
law does not sanction such interpretation, for it deals merely with the finality of orders, directives and decisions of
the Office of the Ombudsman -- not the deprivation of the substantive right to a preliminary investigation.  Moreover,
petitioner cannot be bound by the Ombudsmans January 15, 1998 Resolution, which recommended the filing of
charges. He was not a party to the case and was not accorded any right to present evidence on his behalf.
In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the
former has the duty x x x to see to it that the basic rudiments of due process are complied with. [19]For its part, the
Sandiganbayan opted to remain silent when asked by this Court to comment on the Petition.

Dismissal of the Charges

Not Justified

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Petitioner also prays that the cases against him be dismissed for lack of preliminary investigation. [20] We
disagree. In the first place, nowhere in the Revised Rules of Criminal Procedure, or even the old Rules, is there any
mention that this lack is a ground for a motion to quash. [21] Furthermore, it has been held that responsibility for the
absence of a preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the
proceedings.[22] We reiterate the following ruling of the Court in People v. Gomez:

If there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the
court to their absence, the court, instead of dismissing the information, should conduct such investigation, order the
fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. [23]
In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the case is already
undergoing trial, because [t]o reach any other conclusion here, that is, to hold that petitioners rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to
legitimize the deprivation of due process and to permit the government to benefit from its own wrong or culpable
omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. [24]
WHEREFORE, the Petition is partially GRANTED.  The assailed Orders are REVERSED, and the Office of the
Ombudsman is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of violation of
Section 3-a of RA 3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of Criminal Case No. 24524
shall be SUSPENDED in regard to petitioner until the conclusion of the preliminary investigation. No
pronouncement as to costs.
SO ORDERED.

2. Honasan v. Panel of Investigating Prosecutors in the DOJ

G.R. No. 159747             April 13, 2004

GREGORIO B. HONASAN II, petitioner, 

vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA,
SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP-
P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-
PNP/P Director Eduardo Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military
personnel who occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II
…

3. …

4. The said crime was committed as follows:

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4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was
held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and
made an integral part of this complaint.

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military
rebels occupying Oakwood, made a public statement aired on nation television, stating their
withdrawal of support to the chain of command of the AFP and the Government of President Gloria
Macapagal Arroyo and they are willing to risk their lives in order to achieve the National Recovery
Agenda of Sen. Honasan, which they believe is the only program that would solve the ills of
society. . . . (Emphasis supplied).

The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to
wit:

1. That I am a member of the Communication –Electronics and Information Systems Services, Armed
Forces of the Philippines with the rank of Major;

2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very
Important Person (VIP) Protection Course sometime in last week of March 2003;

3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery
Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption
kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it;

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting
where the NRP would be discussed and that there would be a special guest;

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a
house located somewhere in San Juan, Metro Manila;

6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of
issues and concerns within the framework of NRP and we were likewise served with dinner;

7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo"
Honasan arrived together with another fellow who was later introduced as Capt. Turingan;

8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan;

9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military
institution, the judiciary, the executive branch and the like;

10. That the discussion concluded that we must use force, violence and armed struggle to achieve the
vision of NRP. At this point, I raised the argument that it is my belief that reforms will be achieved through
the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered
that "we will never achieve reforms through the democratic processes because the people who are in
power will not give up their positions as they have their vested interests to protect." After a few more
exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o
out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen.
Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga
kasamahang magtataksil." I decided not to pursue further questions;

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11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e.,
overthrow of the government under the present leadership thru armed revolution and after which, a junta
will be constituted and that junta will run the new government. He further said that some of us will resign
from the military service and occupy civilian positions in the new government. He also said that there is
urgency that we implement this plan and that we would be notified of the next activities.

12. That after the discussion and his presentation, he explained the rites that we were to undergo-some
sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised
arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner
arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it
actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb
on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape.
He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else
followed;

13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it
bleed and I followed what Senator HONASAN did;

14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN
said that "…kaya nating pumatay ng kasamahan";

15. That after the rites, the meeting was adjourned and we left the place;

16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for
fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the
information relayed to me by Captain Alejano that their group had already deeply established their network
inside the intelligence community;

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he
borrowed and told me that when the group arrives at the Malacañang Compound for "D-DAY", my task is to
switch off the telephone PABX that serves the Malacañang complex. I told him that I could not do it. No
further conversation ensued and he left;

18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant
Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during
the June 4th meeting that I attended, having a press conference about their occupation of the Oakwood
Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner
which was displayed and on which we pressed our wound to leave the imprint of the letter "I";

19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to
charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO,
Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the
Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied)

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the
Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation.

On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification
questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his
public office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding
preliminary investigation; that should the charge be filed in court, it is the Sandiganbayan, not the regular courts,
that can legally take cognizance of the case considering that he belongs to the group of public officials with Salary
Grade 31; and praying that the proceedings be suspended until final resolution of his motion.

Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply.
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On September 10, 2003, the DOJ Panel issued an Order, to wit:

On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify
Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion.

The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of
this case.

In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford
respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to
file their respective counter-affidavits and controverting evidence on or before September 23, 2003. 1

Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court
against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V.
Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of
September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation.

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director
Matillano submitted their respective comments.

The Court heard the parties in oral arguments on the following issues:

1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary
investigation over the charge of coup d'etat against petitioner;

2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or
Ombudsman Act of 1989; and

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the
resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ
Panel has no jurisdiction to conduct preliminary investigation.

After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are:

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public
officials, including petitioner.

2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to
conduct the preliminary investigation involving Honasan.

3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No.
95-001 is ultra vires  for being violative of the Constitution, beyond the powers granted to the Ombudsman
by R.A. 6770 and inoperative due to lack of publication, hence null and void.

4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman
which has the jurisdiction to conduct the preliminary investigation.

5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify
Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation.

6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to
submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion
stating its legal and factual bases.

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The arguments of respondent DOJ Panel are:

1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3,
Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as
amended by P.D. No. 1513.

2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a
Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite
nexus between petitioner's office and the acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the
jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory
grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which
embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to
conduct preliminary investigation on offenses charged in relation to public office.

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all
intents and purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112
of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since
a preliminary investigation is required solely for the purpose of determining whether there is a 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. The DOJ panel did not outrightly reject the motion of petitioner but
ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or
rule or any norm of discretion.

The arguments of respondent Ombudsman are:

1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner
for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may
fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of
petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249.

2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over
cases involving public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because
the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public
officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in
Section 4, Rule 112 of the Revised Rules of Criminal Procedure.

3. Petitioner's assertion that the Joint Circular is ultra vires  and the DOJ cannot be deputized by the
Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There
is no rule or law which requires the Ombudsman to write out individualized authorities to deputize
prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds
from the Constitutional grant of power to request assistance from any government agency necessary to
discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under
Sec. 31 of RA 6770.

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman
need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or
prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general.

The Court finds the petition without merit.

The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the
provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides:

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Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a
principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal
justice system in accordance with the accepted processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the correctional system; …

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following
powers and functions:

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system; (Emphasis supplied)

and Section 1 of P.D. 1275, effective April 11, 1978, to wit:

SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of
Justice. – There is hereby created and established a National Prosecution Service under the supervision
and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the
Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City
Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation
and prosecution of all cases involving violations of penal laws. (Emphasis supplied)

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary
investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of
the Ombudsman the power to investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot
prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the
latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution.

and Mabanag vs. Lopez Vito.2

The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz:

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

does not exclude other government agencies tasked by law to investigate and prosecute cases involving public
officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the
exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the
Constitution provides:

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties
as may be provided by law.
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Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof
provides:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers,
functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency
of the government, the investigation of such cases.

…. (Emphasis supplied)

Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay
down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated
November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit:

A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or
employee including those in government-owned or controlled corporations, with an act or omission alleged
to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of
criminal or administrative proceedings, or both.

For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may
be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those
falling under the jurisdiction of the regular courts. The difference between the two, aside from the
category of the courts wherein they are filed, is on the authority to investigate as distinguished
from the authority to prosecute, such cases.

The power to investigate or conduct a preliminary investigation on any Ombudsman case may be
exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or
City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman
prosecutors.

The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive
control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts,
the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the
sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the
Ombudsman and other investigative agencies of the government in the prosecution of cases
cognizable by regular courts. (Emphasis supplied)

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases
from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the
authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph
(1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction
over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigating agency of the government, the investigation of such cases.

That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive
but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state
prosecutors has long been settled in several decisions of the Court.

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly
declared:

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A reading of the foregoing provision of the Constitution does not show that the power of investigation
including preliminary investigation vested on the Ombudsman is exclusive. 3

Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held
in said case:

Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over
cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory
agency of the government, the investigation of such cases. The authority of the Ombudsman to
investigate offenses involving public officers or employees is not exclusive but is concurrent with
other similarly authorized agencies of the government. Such investigatory agencies referred to
include the PCGG and the provincial and city prosecutors and their assistants, the state
prosecutors and the judges of the municipal trial courts and municipal circuit trial court.

In other words the provision of the law has opened up the authority to conduct preliminary
investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the
government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the
1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at
any stage of such investigation in the exercise of his primary jurisdiction.4 (Emphasis supplied)

A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman, under the authority
of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official,
elucidating thus:

As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly
on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act
or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or
inefficient." (Sec. 13[1].) The Ombudsman is also empowered to "direct the officer concerned," in this case
the Special Prosecutor, "to take appropriate action against a public official x x x and to recommend his
prosecution" (Sec. 13[3]).

The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime
committed by a public official. The law does not qualify the nature of the illegal act or omission of the public
official or employee that the Ombudsman may investigate. It does not require that the act or omission be
related to or be connected with or arise from, the performance of official duty. Since the law does not
distinguish, neither should we.

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad
investigative authority, is to insulate said office from the long tentacles of officialdom that are able to
penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and
through the exertion of official pressure and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to
create a special office to investigate all criminal complaints against public officers regardless of whether or
not the acts or omissions complained of are related to or arise from the performance of the duties of their
office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses
"all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or
employee as mentioned in Section 13 hereof, during his tenure  of office" (Sec. 16, R.A. 6770).

.........

Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to
investigate erring public officials would be wasted if its jurisdiction were confined to the investigation of
minor and less grave offenses arising from, or related to, the duties of public office, but would exclude
those grave and terrible crimes that spring from abuses of official powers and prerogatives, for it is the

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investigation of the latter where the need for an independent, fearless, and honest investigative body, like
the Ombudsman, is greatest.6

At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and
the Deloso case. However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated
on the nature of the powers of the Ombudsman to investigate.

In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has jurisdiction to
investigate and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to
investigate is merely a primary and not an exclusive authority, thus:

The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and
prosecute any illegal act or omission of any public official. However as we held only two years ago in the
case of Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but rather a shared or
concurrent authority in respect of the offense charged."

Petitioners finally assert that the information and amended information filed in this case needed the
approval of the Ombudsman. It is not disputed that the information and amended information here did not
have the approval of the Ombudsman. However, we do not believe that such approval was necessary at
all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the Ombudsman has authority to
investigate charges of illegal acts or omissions on the part of any public official, i.e., any crime imputed to a
public official. It must, however, be pointed out that the authority of the Ombudsman to investigate
"any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but
rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition.
Thus, the non-involvement of the office of the Ombudsman in the present case does not have any adverse
legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or
amended information.

In fact, other investigatory agencies of the government such as the Department of Justice in
connection with the charge of sedition, and the Presidential Commission on Good Government, in
ill gotten wealth cases, may conduct the investigation.9 (Emphasis supplied)

In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and
not the provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged
Murder, the Court held:

The Deloso case has already been re-examined in two cases, namely Aguinaldo vs.

Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need for tracing the
history of the legislation relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary
jurisdiction is dependent on the cases cognizable by the former.

In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in
a state of flux.

These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the
Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section
20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861.

The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows:

'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:

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'(a) Exclusive original jurisdiction in all cases involving:

...

(2) Other offenses or felonies committed by public officers and employees in relation to
their office, including those employed in government-owned or controlled corporation,
whether simple or complexed with other crimes, where the penalty prescribed by law is
higher that prision correccional or imprisonment for six (6) years, or a fine of P6,000:
PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the
penalty prescribed by law does not exceed prision correccional or imprisonment for six (6)
years or a fine of P6,000 shall be tried by the proper Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court and Municipal Circuit Trial Court."

A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense
to fall under the Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be
in relation to his office and the penalty prescribed be higher then prision correccional or imprisonment for
six (6) years, or a fine of P6,000.00.11

Applying the law to the case at bench, we find that although the second requirement has been met, the first
requirement is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would
reveal that the crime committed by public officers or employees must be "in relation to their office" if it is to
fall within the jurisdiction of the Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468,
has been retained by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary
jurisdiction on its power to investigate.

It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of
the 1987 Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the
Ombudsman's power to investigate is dependent on the cases cognizable by the Sandiganbayan.
Statutes are in pari materia when they relate to the same person or thing or to the same class of
persons or things, or object, or cover the same specific or particular subject matter.

It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent
with itself, but also to harmonize with other laws on the same subject matter, as to form a complete,
coherent and intelligible system. The rule is expressed in the maxim, "interpretare et concordare
legibus est optimus interpretandi," or every statute must be so construed and harmonized with
other statutes as to form a uniform system of jurisprudence. Thus, in the application and
interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of
1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the
1987 Constitution was written, its framers had in mind previous statutes relating to the same
subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No.
1861.12 (Emphasis supplied)

R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides
that for other offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive
jurisdiction of the Sandiganbayan, they must have been committed by public officers or employees in relation to
their office.

In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan
Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public
officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of
such cases.

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In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public
officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan,
then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to
conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No.
95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE

OMBUDSMAN

ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY

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

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE
CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND
THEIR ASSISTANTS.

x-------------------------------------------------------------------------------------------------------x

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE,
discussion centered around the latest pronouncement of the supreme court on the extent to which the
ombudsman may call upon the government prosecutors for assistance in the investigation and prosecution
of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed
was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and structural
organization of the sandiganbayan, amending for the purpose presidential decree no. 1606, as amended"
and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by
public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction
between the OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in
the filing of complaints against public officers and employees, the conduct of preliminary investigations, the
preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors
and their assistants as deputized prosecutors of the ombudsman.

Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of
consultations, have agreed on the following guidelines to be observed in the investigation and prosecution
of cases against public officers and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and employees in
relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the
office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and
supervision of the office of the ombudsman.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not
in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office
of the provincial/city prosecutor, which shall rule thereon with finality.

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3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted
the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished
criminal informations shall be forwarded to the appropriate approving authority.

4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for
effective monitoring of all investigations and prosecutions of cases involving public officers and employees,
the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of
complaints filed with their respective offices against public officers and employees.

Manila, Philippines, October 5, 1995.

(signed) (signed)

TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO

Secretary Ombudsman
Department of Justice Office of the Ombudsman

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal
agreement between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective
December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions.

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

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such
action.

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No complaint or information may be filed or dismissed by an investigating prosecutor without the

prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy
on the ground that a probable cause exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another
preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by
the officers of the Office of the Ombudsman. (Emphasis supplied)

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with
them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those
offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses
falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation,
transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the
prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor
can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written
authority of the Ombudsman or his deputy.

Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the
Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed
against him.

We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989,
Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised
Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ
to conduct preliminary investigation on charges filed against public officers and employees.

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any
public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors
are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints
filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had
been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to
delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first
place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation.

Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not
published is not plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit:

Petitioner appears to be of the belief, although NOT founded on a proper reading and application of

jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the
Office of the Ombudsman, has to be published.

As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po
Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a penalty for its violation should

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be published before becoming effective, this, on the general principle and theory that before the public is
bound by its contents, especially its penal provision, a law, regulation or circular must first be published and
the people officially and specifically informed of said contents and its penalties: said precedent, to date, has
not yet been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal
provision or prescribe a mandatory act or prohibit any, under pain or penalty.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that:

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties. (at page 454. emphasis supplied)

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

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be
published.14

Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is
a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the
Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges
against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the
DOJ Panel the authority to investigate the charge of coup d'etat against him.

The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the
Sandiganbayan Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the
present petition so as not to pre-empt the result of the investigation being conducted by the DOJ Panel as to the
questions whether or not probable cause exists to warrant the filing of the information against the petitioner; and to
which court should the information be filed considering the presence of other respondents in the subject complaint.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

3. Uy v. Sandiganbayan

EN BANC

[G.R. Nos. 105965-70. March 20, 2001]

GEORGE UY,  petitioner, vs.  THE HON. SANDIGANBAYAN, THE HON. OMBUDSMAN AND THE HON.
ROGER C. BERBANO, SR., SPECIAL PROSECUTION OFFICER III, OFFICE OF THE SPECIAL
PROSECUTOR, respondents.

RESOLUTION
PUNO, J.:
Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's
ruling in its decision dated August 9, 1999 and resolution dated February 22, 2000 that the prosecutory power of

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the Ombudsman extends only to cases cognizable by the Sandiganbayan and that the Ombudsman has no
authority to prosecute cases falling within the jurisdiction of regular courts.
The Court stated in its decision dated August 9, 1999:

In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding
information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in
cases cognizable by the Sandiganbayan.
It explained in the resolution of February 22, 2000 that:

(t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city
prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction
of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling
within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional
and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the
Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan" And this is further buttressed by
Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to
"conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus,
repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the Ombudsman's and Special
Prosecutor's authority to cases cognizable by the Sandiganbayan.
Seeking clarification of the foregoing ruling, respondent Ombudsman raises the following points:
(1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader
jurisdiction of the Office of the Ombudsman;
(2) The phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the
Sandiganbayan" is not a delimitation of its jurisdiction solely to Sandiganbayan cases; and
(3) The authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan
cannot be confused with the broader investigatory and prosecutorial powers of the Office of the
Ombudsman.
Thus, the matter that needs to be discussed herein is the scope of the power of the Ombudsman to conduct
preliminary investigation and the subsequent prosecution of criminal offenses in the light of the provisions of the
Ombudsman Act of 1989 (Republic Act [RA] 6770).
We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all
criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan,
but those within the jurisdiction of the regular courts as well.
The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and
employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power
to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act
or omission appears to be illegal, unjust, improper or inefficient, thus:

Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers,
functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation
of such cases;
xxx

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Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman
under the latters supervision and control, the power to conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan. It states:

Sec. 11. Structural Organization. x x x

xxx

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The
Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under
the supervision and control of the Ombudsman.

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the
Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified.  It
pertains to any act or omission of any public officer or employee when such act or omission appears to be
illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission
of any public official is broad enough to embrace any crime committed by a public officer or employee. [1]
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1)
giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4)
granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any
stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority
does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees
cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by
the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses
committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature
to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their tenure of office. [2]
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of
the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component
of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the
Ombudsman.[3] Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within
the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all
complaints against officers and employees of the government and to enforce their administrative, civil and criminal
liability in every case where the evidence warrants. [4] To carry out this duty, the law allows him to utilize the
personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated
or deputized to assist him work under his supervision and control. [5] The law likewise allows him to direct the
Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c)
of RA 6770.

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The prosecution of offenses committed by public officers and employees is one of the most important functions
of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to
make him a more active and effective agent of the people in ensuring accountability in public office. [6] A review of
the development of our Ombudsman laws reveals this intent.
The concept of Ombudsman originated in Sweden in the early 19 th century, referring to an officer appointed by
the legislature to handle the peoples grievances against administrative and judicial actions.He was primarily tasked
with receiving complaints from persons aggrieved by administrative action or inaction, conducting investigation
thereon, and making recommendations to the appropriate administrative agency based on his findings. He relied
mainly on the power of persuasion and the high prestige of the office to effect his recommendations. [7]
In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the
peoples medium for airing grievances and seeking redress against abuses and misconduct in the
government. These offices were conceived with the view of raising the standard in public service and ensuring
integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board
charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in
office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several
other agencies which performed basically the same functions of complaints-handling and investigation. These were
the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential
Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft
Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and Government
Operations and the Office of the Citizens Counselor, both under President Ferdinand Marcos. It was observed,
however, that these agencies failed to realize their objective for they did not enjoy the political independence
necessary for the effective performance of their function as government critic. Furthermore, their powers extended
to no more than fact-finding and recommending.[8]
Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to
constitutionalize the office of an Ombudsman, to give it political independence and adequate powers to enforce its
recommendations.[9] The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be
known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but
shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate body in
case of failure of justice. Section 6, Article XIII of the 1973 Constitution read:

Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which
shall receive and investigate complaints relative to public office, including those in government-owned or controlled
corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and
prosecute the corresponding criminal, civil or administrative case before the proper court or body.
Implementing this constitutional provision, President Marcos, on June 11, 1978, exercising his power under
Proclamation 1081, enacted Presidential Decree (PD) 1487 creating the Office of the Ombudsman to be known as
Tanodbayan. Its principal task was to investigate, on complaint, any administrative act [10] of any administrative
agency[11] including any government-owned or controlled corporation. [12] The Tanodbayan also had the duty to file
and prosecute the corresponding criminal, civil, or administrative case before the Sandiganbayan or the proper
court or body if he has reason to believe that any public official, employee, or other person has acted in a manner
resulting in a failure of justice. [13] It should be noted, however, that the prosecution of cases falling within the
jurisdiction of the Sandiganbayan was to be done by the Tanodbayan through the Special Prosecutor who,
according to PD 1486,[14] had the exclusive authority to conduct preliminary investigation, file information for and
prosecute cases within the jurisdiction of said court. The Special Prosecutor was then under the control and
supervision of the Secretary of Justice.[15]
Shortly after its enactment, PD 1487 was amended by PD 1607 which took effect on December 10, 1978.  The
amendatory law broadened the authority of the Tanodbayan to investigate administrative acts of administrative
agencies by authorizing it to conduct an investigation on its own motion or initiative, even without a complaint from
any person.[16] The new law also expanded the prosecutory function of the Tanodbayan by creating the Office of the
Chief Special Prosecutor in the Office of the Tanodbayan and placing under his direction and control the Special
Prosecutor who had the exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan; to file informations therefor and to direct and control the prosecution of said cases therein. [17] Thus,
the law provided that if the Tanodbayan has reason to believe that any public official, employee, or other person
has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be
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 Page 21 of 245

investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or
administrative case before the Sandiganbayan or the proper court or before the proper administrative agency. [18]
On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD 1607. PD 1630 reorganized the
Office of the Tanodbayan and transferred the powers previously vested in the Special Prosecutor to the
Tanodbayan himself. Thus, the Tanodbayan was empowered to directly conduct preliminary investigation, file
information and prosecute cases within the jurisdiction of the Sandiganbayan and other courts. The amendment
gave the Tanodbayan the exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan; to file information therefor and to direct and control the prosecution of said cases. [19] Section 10 of
PD 1630 provided:

Sec. 10. Powers.--The Tanodbayan shall have the following powers:

(a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative
act whether amounting to any criminal offense or not of any administrative agency including any
government-owned or controlled corporation;
xxx
(e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or
complaint with the Sandiganbayan or any proper court or administrative agency and prosecute the
same.
Section 18 further stated:

Sec. 18. Prosecution of Public Personnel or Other Person.--If the Tanodbayan has reason to believe that any
public official, employee or other person has acted in a manner warranting criminal or disciplinary action or
proceedings, he shall conduct the necessary investigation and shall file and prosecute the corresponding criminal
or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency.
With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present
Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner
against public officials or employees of the government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and to notify the complainants of the action taken and the
result thereof.[20] He possesses the following powers, functions and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient;
2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled
corporation with original charter, to perform and expedite any act or duty required by law, or to stop,
prevent and correct any abuse or impropriety in the performance of duties.
3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance
therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered into
by his office involving the disbursement or use of public funds or properties, and report any irregularity
to the Commission on Audit for appropriate action.
5. Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents.
6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards of
ethics and efficiency.
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 Page 22 of 245

8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties
as may be provided by law.[21]
As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the
Special Prosecutor which continued to function and exercise its powers as provided by law, except those conferred
on the Office of the Ombudsman created under the 1987 Constitution. [22]
The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by
President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987.
In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the
Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not
only the duty to receive and relay the people's grievances, but also the duty to investigate and prosecute for and in
their behalf, civil, criminal and administrative offenses committed by government officers and employees as
embodied in Sections 15 and 11 of the law.
Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to
receive and process the people's complaints against corrupt and abusive government personnel. The Philippine
Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees,
giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that
may be committed by such officers and employees. The legislature has vested him with broad powers to enable
him to implement his own actions.Recognizing the importance of this power, the Court cannot derogate the same
by limiting it only to cases cognizable by the Sandiganbayan. It is apparent from the history and the language of the
present law that the legislature intended such power to apply not only to cases within the jurisdiction of the
Sandiganbayan but also those within the jurisdiction of regular courts. The Court observed in the case of Republic
vs. Sandiganbayan:[23]

A perusal of the law originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and
the amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was
already vested with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and
even the regular courts.
xxx

Presidential Decree No. 1630 was the existing law governing the then Tanodbayan when Republic Act No. 6770
was enacted providing for the functional and structural organization of the present Office of the Ombudsman. This
later law retained in the Ombudsman the power of the former Tanodbayan to investigate and prosecute on its own
or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient. x x x.
Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving public officers
and employees before the regular courts does not conflict with the power of the regular prosecutors under the
Department of Justice to control and direct the prosecution of all criminal actions under Rule 110 of the Revised
Rules of Criminal Procedure. The Rules of Court must be read in conjunction with RA 6770 which charged the
Ombudsman with the duty to investigate and prosecute all illegal acts and omissions of public officers and
employees. The Court held in the case of Sanchez vs. Demetriou[24] that the power of the Ombudsman under
Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the
offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides:

The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and
supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by
the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein). [25] The law recognizes a
concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government
in the prosecution of cases cognizable by regular courts.
IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February
20, 2000 that the Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan
is SET ASIDE.
SO ORDERED.
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4. Ladlad v. Velasco

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 172070-72             June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C.

CASAMBRE,Petitioners, 
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C.
MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A.
MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of
Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE
SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief,
Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G.
TANIGUE, Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

G.R. Nos. 172074-76             June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIÑO, CRISPIN B. BELTRAN,
and RAFAEL V. MARIANO, Petitioners, 
vs.
RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUÑO, in
his capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y.
VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A.
WAGA (Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for
Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting
Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE
(PNP), Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 175013             June 1, 2007

CRISPIN B. BELTRAN, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the Secretary of
Justice and overall superior of the Public Prosecutors, HONORABLE ENCARNACION JAJA G. MOYA, in
her capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 146, and HONORABLE
ELMO M. ALAMEDA, in his capacity as Presiding Judge of Regional Trial Court of Makati City, Branch
150,Respondents.

DECISION

CARPIO, J.:

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The Case

These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners’ prosecution for
Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati
City (RTC Makati) on the investigation and prosecution of petitioners’ cases.

The Facts

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza
(Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casiño (Casiño), and Rafael V.
Mariano (Mariano),1 are members of the House of Representatives representing various party-list
groups.2Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under
Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.

G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24
February 2006 declaring a "State of National Emergency," police officers 3 arrested Beltran on 25 February 2006,
while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested
without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that
evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article
142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24
February 2006, on the occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint
affidavit of Beltran’s arresting officers who claimed to have been present at the rally. The inquest
prosecutor4indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City
(MeTC).5

The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second
inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors 6 from the
DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of
Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the
Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting
Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDG’s
investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders
and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried
out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas
(MKP), which have formed a "tactical alliance."

On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran
and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The
Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x
x, did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed
as Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB)
with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly
constituted government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137
under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).

Beltran moved that Branch 137 make a judicial determination of probable cause against him. 8 Before the motion
could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge
Encarnacion Jaja-Moya (Judge Moya).

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran. 9 Beltran
sought reconsideration but Judge Moya also inhibited herself from the case without resolving Beltran’s motion.
Judge Elmo M. Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006
denying Beltran’s motion.

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 Page 25 of 245

Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to
enjoin Beltran’s prosecution.

In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion was valid and that
the RTC Makati correctly found probable cause to try Beltran for such felony.

G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)

Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them
to appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their
receipt of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for
fear of being subjected to warrantless arrest.

During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later
identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to
his affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media
members present during the proceedings. The panel of prosecutors 10 gave petitioners 10 days within which to file
their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDG’s letters
only on 17 March 2006.

Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and
independence, considering the political milieu under which petitioners were investigated, the statements that the
President and the Secretary of Justice made to the media regarding petitioners’ case, 11 and the manner in which
the prosecution panel conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners’
motion on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases.
However, the panel of prosecutors denied petitioners’ motions on 4 April 2006.

Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.

Acting on petitioners’ prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June
2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause
to charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch
57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in
Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the
prosecution of Criminal Case No. 06-944.

In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of
petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No.
06-944 has mooted the Maza petition.

The Issues

The petitions raise the following issues:

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether
there is probable cause to indict Beltran for Rebellion; and

2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing
with the prosecution of Criminal Case No. 06-944.13

The Ruling of the Court

We find the petitions meritorious. On the Beltran Petition

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 Page 26 of 245

The Inquest Proceeding against Beltran for Rebellion is Void.

Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. 14 Section 5,
Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be
effected, thus:

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

xxxx

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 joint affidavit of Beltran’s arresting officers 15 states that the officers arrested Beltran, without a warrant, 16 for
Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did
conduct – an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors
subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the
second inquest void. None of Beltran’s arresting officers saw Beltran commit, in their presence, the crime of
Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed
Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting
officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24
February 2006.17

Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if
the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section
5, Rule 113."18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular
No. 61 which provides:

Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest was not made in accordance
with the Rules, he shall:

a) recommend the release of the person arrested or detained;

b) note down the disposition on the referral document;

c) prepare a brief memorandum indicating the reasons for the action taken; and

d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for
appropriate action.

Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor
but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be
served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the
subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit
or sworn statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied)

Page 26 of 245
 Page 27 of 245

For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5,
Rule 113 and DOJ Circular No. 61, we declare Beltran’s inquest void. 19 Beltran would have been entitled to a
preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which
effectively took the place of such proceeding.

There is No Probable Cause to Indict

Beltran for Rebellion.

Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality,
this Court, as a rule, does not interfere with the prosecutor’s determination of probable cause for otherwise, courts
would be swamped with petitions to review the prosecutor’s findings in such investigations. 21 However, in the few
exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to
support a finding of probable cause, thus denying the accused his right to substantive and procedural due process,
we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutor’s
findings.22 This exception holds true here.

Rebellion under Article 134 of the Revised Penal Code is committed –

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land,
naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.23

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a
political end.24

The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the
affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit
in Beltran’s contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of
the documents consists of affidavits, some of which were sworn before a notary public, executed by members of
the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20
Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006, 27 none of the affidavits mentions
Beltran.28 In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo,
Casiño, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal,
Padre Garcia, Batangas and that after the passengers alighted, they were met by another individual who looked
like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the

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CPP’s "10thPlenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and
the other CPP members used were purchased partly from contributions by Congressional members, like Beltran,
who represent party-list groups affiliated with the CPP.

The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public
uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia,
Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the
affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in
the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion.
Beltran’s alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion.

In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno
(KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in
the CPP does not constitute rebellion.29 As for the alleged funding of the CPP’s military equipment from Beltran’s
congressional funds, Cachuela’s affidavit merely contained a general conclusion without any specific act showing
such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na
naihalal sa Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x
x."30Such a general conclusion does not establish probable cause.

In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’ affidavit, dated 25 February 2006, 31 as
basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding
meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the
Arroyo government were allegedly discussed, among others.

The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG referred to the DOJ on 27
February 2006. Thus, the panel of inquest prosecutors did not have Fuentes’ affidavit in their possession when they
conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February
2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006
during which Fuentes subscribed to his statement before respondent prosecutor Velasco.

Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC
Makati Fuentes’ affidavit as part of their Comment to Beltran’s motion for judicial determination of probable cause.
Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not
improve the prosecution’s case. Assuming them to be true, what the allegations in Fuentes’ affidavit make out is a
case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion
under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere
preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged
this, since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is
Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and
others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless
found probable cause to try Beltran for Rebellion based on the evidence before it.

The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including
Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the
minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that
"Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken,
denies knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The
Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the
Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there
is no allegation in the Information that he is a leader or promoter of the Rebellion. 33 However, the Information in fact
merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit
rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit
Rebellion, a bailable offense.34

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On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted

With Irregularities.

As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a
practice rooted on public interest as the speedy closure of criminal investigations fosters public safety. 35 However,
such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong
arm of the law in an oppressive and vindictive manner36 or (b) to afford adequate protection to constitutional
rights.37The case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.

The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day
is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus:

Procedure.—The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other supporting documents to establish probable cause.
They shall be in such number of copies as there are respondents, plus two (2) copies for the official file.
The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that
he personally examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he
finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a
copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant
may be required to specify those which he intends to present against the respondent, and these shall be
made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented
by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They
may, however, submit to the investigating officer questions which may be asked to the party or witness
concerned.

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 Page 30 of 245

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five (5)
days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there
is sufficient ground to hold the respondent for trial. (Emphasis supplied)

Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the
constitutional right to liberty of a potential accused can be protected from any material damage," 38 respondent
prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112
which provides that the complaint (which, with its attachment, must be of such number as there are respondents)
be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a
notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP
as complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a
notary public without any showing that a prosecutor or qualified government official was unavailable as required by
Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if
there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall
"issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily
issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of
the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present
a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to
distribute copies of Fuentes’ affidavit not to petitioners or their counsels but to members of the media who covered
the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It
was only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the
CIDG letters.1a\^/phi1.net

These uncontroverted facts belie respondent prosecutors’ statement in the Order of 22 March 2006 that the
preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure." 40 Indeed, by
peremptorily issuing the subpoenas to petitioners, tolerating the complainant’s antics during the investigation, and
distributing copies of a witness’ affidavit to members of the media knowing that petitioners have not had the
opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but
also lent credence to petitioners’ claim that the entire proceeding was a sham.

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the
difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind
and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere
formal or technical right" but a "substantive" one, forming part of due process in criminal justice. 41 This especially
holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those
accused as principals.

Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of the Information against
petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72
and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with
the trial court.1a\^/phi1.net

On Respondent Prosecutors’ Lack of Impartiality

We find merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent Secretary of Justice, who
exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day
of the preliminary investigation, that, "We [the DOJ] will just declare probable cause, then it’s up to the [C]ourt to
decide x x x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this

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statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable
cause.

A Final Word

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and
respondent prosecutors brings to mind an observation we made in another equally politically charged case. We
reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal
prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be
enhanced.44 1a\^/phi1.net

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the
Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court,
Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006
and 4 April 2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150
to DISMISS Criminal Case Nos. 06-452 and 06-944.

SO ORDERED.

5. Webb v. De Leon

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner, 
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch
258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque,
Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB,
JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274,
respondents, LAURO VIZCONDE, intervenor.

G.R. No. 121245 August 23, 1995

MICHAEL A. GATCHALIAN, petitioner, 
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch
258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque,
Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO

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 Page 32 of 245

FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the
Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents.

G.R. No. 121297 August 23, 1995

ANTONIO L. LEJANO, petitioner, 
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch
258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque,
Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB,
JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch
274, respondents.

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition
and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set
aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita
Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the
aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused
therein.1

From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with
the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J.
Lejano and six (6) other persons,2 with the crime of Rape with Homicide. Forthwith, the Department of Justice
formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuño to conduct the
preliminary investigation3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her
mother Estrellita Nicolas-Vizconde,5 and her sister Anne Marie Jennifer6 in their home at Number 80 W. Vinzons,
St., BF Homes, Parañaque, Metro Manila.

During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995
of their principal witness, Maria Jessica M.  Alfaro who allegedly saw the commission of the crime;7 (2) the sworn
statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila
S.Gaviola;8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger
of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his
co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who
narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements
of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a
security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and
they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital
examination of Carmela confirmed the presence of spermatozoa. 11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And
Examination of Evidence and Documents for the NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert
Webb in the United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;

(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;
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 Page 33 of 245

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2,
1991 submitted by Atty. Arlis Vela, Supervising Agent;

(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the
May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent
Rodolfo C. Sison, Regional Deputy Director, NCRC;

(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective
positions and duties;

(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost
the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No.
951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original
of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced
a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner
Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain
from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production.

Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to
the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was
corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo
Venture and Pamela Francisco.13 To further support his defense, he submitted documentary evidence that he
bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the
State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter
dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to
confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines
Flight No. 808.

The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter
Estrada, Miguel Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss
denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong"
Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In
his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3
o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at
New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for
trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-
respondents,18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused
with the Regional Trial Court of Parañaque. The case was docketed as Criminal Case No. 95-404 and raffled to
Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon,
pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995,
Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering
his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided
by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On
August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in
Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their
petitions before us.

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In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their
discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2)
the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the
crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their
preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge
Jessica Alfaro in the Information as an accused.

We find the petitions bereft of merit.

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn
statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material
inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility
for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed
by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies
in the sworn statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides
that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a
well-grounded 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." Section 3 of the same Rule outlines the
procedure in conducting a preliminary investigation, thus:

Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an
offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation
having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in such
number of copies as there are respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent,
attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten
(10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting
documents. He shall have the right to examine all other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also
be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be
furnished by him to the complainant.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall base his resolution on the evidence
presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to
propound clarificatory questions to the parties or their witnesses, during which the parties shall be
afforded an opportunity to be present but without the right to examine or cross-examine. If the
parties so desire, they may submit questions to the investigating officer which the latter may
propound to the parties or witnesses concerned.

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(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall
resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating
officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial,
he shall prepare the resolution and corresponding information. He shall certify under oath 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 . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure
in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a
probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be
intruded by the State.21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing
accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other
jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The
terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or
a judge but to the average man on the street.25 It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence
of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have
an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion
when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2)
grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she
committed material inconsistencies in her two (2) sworn statement, thus: 26

xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements of
Alfaro:

On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."

On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said
"on the following day I read in the newspaper that there were three persons who
were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on
top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

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Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela
and pumping, her mouth gagged and she was moaning and I saw tears on her
eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a
meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode
the credibility of Alfaro. We quote the pertinent ruling, viz.:27

xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that
she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as
evidence to show the probability of the co-conspirator's participation in the commission of the crime
(see People vs. Lumahang, 94 Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence
of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be
demonstrable since, in the nature of things, criminal undertakings are only rarely documented by
agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before,
during and after the commission of the crime, showing that the several accused had acted in
concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of
Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements.
In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for
the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his
affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of
the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony
of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting
that the instant complaint "should not be decided within the month to give time to the NBI to
coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to
check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the maxim  falsus in
uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This
is untenable. As held in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony
of a witness as worthy of belief and from simultaneously rejecting other parts which
the court may find incredible or dubious. The maxim  falsus in uno, falsus in

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omnibus is not a rule of law, let alone a general rule of law which is universally
applicable. It is not a legal presumption either. It is merely a latinism describing the
conclusion reached by a court in a particular case after ascribing to the evidence
such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations when
she first executed the first statement and held back vital information due to her natural reaction of
mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements
have been sufficiently explained especially specially so where there is no showing that the
inconsistencies were deliberately made to distort the truth. Consequently, the probative value of
Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are
generally incomplete because they are usually executed when the affiant's state of mind does not
give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in
full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of
Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what
is clear before us is that the totality of the evidence submitted by the complainant indicate a prima
facie  case that respondents conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists
of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the
petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila
Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and
Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29

xxx xxx xxx

According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991,
between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two
male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to
bring them three glasses of juice. It was the last time she saw Hubert and was later told by then
Congressman Webb that Hubert was in the United States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry
woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991,
she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of
the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered
Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while
he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with
the clothes of the other members of the family to the laundry area. After taking her breakfast, she
began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she
noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's
quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see
what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that
door there is a small opening where she used to see Hubert and his friends sniffing on something.
She observed Hubert was quite irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at
around 4:00 in the same afternoon and went inside his room using the secret door of the house. It
was the last time that she saw Hubert until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the
United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw
then Congressman Freddie Webb with a male companion. He greeted him and Webb answered:
"Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb
because he often watched him then in a television show "Chicks to Chicks." He observed that the
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man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son
referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was
then wearing a striped white jacket. When he and his children were already inside the plane, he did
not see Freddie anymore, but he noticed his son was seated at the front portion of the economy
class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that,
while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie
Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small
built, with a height of five feet and seven inches tall, and who was the one who left for United
States on March 9, 1991, he nurtured doubts because such description does not fit the physical
traits of the son of Freddie, who left with him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost
three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship
started in February, 1991 until she broke up with him in September 1993. She recalls that on June
29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling
Glo located at the back of the Parañaque Municipal Hall.

At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police
told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to
take him over and after somebody won the game, she followed Biong at the radio room where she
overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na
taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan,
ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody.
Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat
and parked near the canteen. After it made some signals by blinking its headlight, Biong rode
thereat at the front seat beside the driver and then, they left. She was not able to recognize the
male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the
same morning and when he arrived, he immediately washed his hands and face, and took his
handkerchief from his pocket which he threw at the trash can. She asked him why he threw his
handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes
and he replied, "Putang inang mga batang iyon, pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him doing
something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another
policeman of Parañaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo"
to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome
who offered to accompany him and with whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked Biong if he knew the exact address
and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never
told him the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact
the victim's relatives, while the security guard fetched the barangay chairman and the president of
the Homeowners Association. When all these persons were already in the house, Biong started
recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from
the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of
the room and proceeded to the dining area. On top of the dining table, she saw the scattered
contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the
front door to remove the chain lock; asked the keys from the housemaid and it was only then that
the main door was opened. Biong noticed a stone in front of the broken glass of the door and
requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids'
claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining
glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the
sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the
car.

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On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde
housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the
things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a
crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from
the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong
for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Parañaque.
The next day, she saw Biong took from his locker at the Parañaque Police Station an imported
brown leather jacket, which the latter claimed to have been given to him by the person who called
him up in the early morning of June 30, 1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She
observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In
fact, when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque
Police Station, she was surprised that Biong halted the investigation when Gatchalian was
profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel
Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and
that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30

xxx xxx xxx

The voluminous number of exhibits submitted by respondent Webb to support his defense of denial
and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes
that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the
positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in
the face of positive identification especially so where the claim of alibi is supported mainly by
friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA
316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than
the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233
SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when
arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid,
233 SCRA 62 [1994]).

Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was

with him watching video tapes at the Syyap residence. Other than claiming that he "was not and
could not have been at or near the area of the Vizconde residence at the time of the alleged
commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of
alibi.

xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of
documents tending to show that he was thousands of miles away when the incident occurred. We
have carefully deliberated and argued on the evidence submitted by respondent Webb in support
of his absence from the country since March 9, 1991 to October 26, 1992 and found the same
wanting to exonerate him of the offense charged. The material dates in this case are June 29 and
30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a
California driver's license on June 14, 1991, there is no showing that he could not have been in the
country on the dates above mentioned. Neither do we find merit in the allegation that respondent
Webb personally bought a bicycle on June 30, 1991 in California in view of his positive
identification by Alfaro and the two (2) househelps of the Webb family who testified that he was
here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a

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bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of
the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did
not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable
cause needs only to rest on evidence showing that more likely than not a crime has been committed and
was committed by the suspects. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence
establishing absolute certainty of guilt. As well put in Brinegar v. United States,31 while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A
finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we
also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for
clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies
probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part
of 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. In the case at bar, the DOJ Panel
correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.

II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent
Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary
examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants
of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records
submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause;
and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO
BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a
"searching examination of witnesses and evaluation of the documents" on the part of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the
fundamental law of the land. Section 2 of Article III of the Constitution provides:

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.

The aforequoted provision deals with the requirements of probable cause both with respect to issuance of
warrants of arrest or search warrants. The similarities and differences of their requirements ought to be
educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally
assumed that the same quantum of evidence is required whether one is concerned with probable cause to
arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different
facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must
be supported by substantial evidence: that the items sought are in fact seizable by virtue of being
connected with criminal activity, and that the items will be found in the place to be searched. It is not also
necessary that a particular person be implicated. By comparison, in arrest cases there must be probable
cause that a crime has been committed and that the person to be arrested committed it, which of course
can exist without any showing that evidence of the crime will be found at premises under that person's
control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the
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issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule
112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the
arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined.
Thus, Sections 3, 4 and 5 of Rule 126 provide:

xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon
probable cause in connection with one specific offense 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 things to be seized.

Sec. 4. Examination of complainant;  record. — The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts personally known to them and attach to
the record their sworn statements together with any affidavits submitted.

Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon
which the application is based, or that there is probable cause to believe that they exist, he must
issue the warrant, which must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven
vs. Makasiar,33 thus:

xxx xxx xxx

The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision reads:

Art. III, 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.

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires
the judge to personally examine the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge
to satisfy himself of 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 documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant; 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 conclusions as to the existence of
probable cause.

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Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of
petitioners that respondent judges should have conducted "searching examination of witnesses" before
issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue
an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an
Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn
statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-
affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against
petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just  personally review  the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the
review process cannot be measured by merely counting minutes and hours. The fact that it took the
respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel
does not mean they made no personal evaluation of the evidence attached to the records of the case. 36

Petitioners' reliance on the case of Allado vs. Diokno37 is misplaced. Our Allado ruling is predicated on the
utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the
crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the
evidence on record, we stressed the necessity for the trial judge to make a further personal examination of
the complainant and his witnesses to reach a correct assessment of the existence or non-existence of
probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a
different factual setting. As priorly discussed, the various types of evidence extant in the records of the case
provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the
crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi
defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore
unnecessary for the respondent judges to take the further step of examining ex parte the complainant and
their witnesses with searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and violation of their
right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and
the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause
against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor
General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be
heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the
initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a
"Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4,
Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and
Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July
7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to
Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's
counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the
FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-
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2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of
the DOJ Panel not to issue  subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb
filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court,
Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement
of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after
Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without
ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn
statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben
A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary
investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to
conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with
the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response"
submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these,
the panel even announced that any party may submit additional evidence before the resolution of
the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary
investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was
promulgated, and the information eventually filed in the Regional Trial Court of Parañaque on
August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules
of Court that the investigating officer shall resolve the case within ten (10) days from the
termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce
more evidence in their behalf and for the panel to study the evidence submitted more fully. This
directly disputes the allegation of the petitioners that the resolution was done with indecent haste in
violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners
were free to adduce and present additional evidence before the DOJ Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of the
preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and
filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with
homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to
the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No.
223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:

Sec. 4. Non-Appealable Cases;  Exceptions. — No appeal may be taken from a resolution of the
Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable
cause except upon showing of manifest error or grave abuse of discretion.  Notwithstanding the
showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the
appellant had already been arraigned. If the appellant is arraigned during the pendency of the
appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not
hold the filing of the information in court.

Sec. 2. When to appeal. — The appeal must be filed within a period of fifteen (15) days from
receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only
by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and
shall continue to run from the time the resolution denying the motion shall have been received by
the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can still exercise the right to seek a
review of the prosecutor's recommendation with the Secretary of Justice.

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Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on
Republic Act 
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For
Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:

xxx xxx xxx

Sec. 10. State Witness. — Any person who has participated in the commission of a crime and
desires to a witness for the State, can apply and, if qualified as determined in this Act and by the
Department, shall be admitted into the Program whenever the following circumstances are present:

(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or
its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense committed;

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may
be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may
upon his petition be admitted to the Program if he complies with the other requirements of this Act.
Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness
under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the
criminal Complaint or Information, thus:

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Sec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission
into the Program by the Department shall be given full faith and credit by the provincial or city
prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT
OR INFORMATION and if included therein, to petition the court for his discharge in order that he
can be utilized as a State Witness. The court shall order the discharge and exclusion of the said
accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal prosecution
for the offense or offenses in which his testimony will be given or used and all the rights and
benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an
intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal
Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule
11938which gives the court the prerogative to approve the discharge of an accused to be a state witness.
Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute
is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In
truth, the prosecution of crimes appertains to the executive department of government whose principal

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power and responsibility is to see that our laws are faithfully executed. A necessary component of this
power to execute our laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We
thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program and who shall
be granted immunity from prosecution.39Section 9 of Rule 119 does not support the proposition that the
power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the
court, is given the power to discharge a state witness only because it has already acquired jurisdiction over
the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be
beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981
is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain
cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the
Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to
appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal,
criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more
effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and
granting them certain rights and benefits to ensure their appearance in investigative
bodies/courts."40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during their
preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro
and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the
rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules
on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary
investigation stage of a criminal proceeding.41 Sections 10 and 11 of Rule 117 do provide an accused the
right to move for a bill of particulars and for production or inspection of material evidence in possession of
the prosecution.42 But these provisions apply after the filing of the Complaint or Information in court and the
rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare
for trial.43

This failure to provide discovery procedure during preliminary investigation does not, however, negate its
use by a person under investigation when indispensable to protect his constitutional right to life, liberty and
property. Preliminary investigation is not too early a stage to guard against any significant erosion of the
constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a crime. We hold that the finding of
a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In
the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the
crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation.
Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high
duty is to be fair and impartial.44 As this Court emphasized in Rolito Go vs.  Court of Appeals,45 "the right to
have a preliminary investigation conducted before being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a
substantive right." A preliminary investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from any material damage. We uphold
the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the
April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable
guilt. The right is rooted on the constitutional protection of due process which we rule to be operational
even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule
112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state
the known address of the respondent and be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents . . ."

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In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963
watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of
evidence favorable to an accused upon request violates due process where the evidence is material to guilt
or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case
of Mooney v.  Holohan  47 which laid down the proposition that a prosecutor's intentional use of perjured
testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well
put by Justice Brennan in Brady49 — "society wins not only when the guilty are convicted but when criminal
trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be
sprung and where gain by guile is not punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are
not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28,
1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable
cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's
April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately,
petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the
course of the proceedings in Civil Case No. 951099.50 As petitioners admit, the DOJ Panel accepted the
original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair
chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory
aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to
charge them despite the alleged material discrepancies between the first and second sworn statements of
Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with
grave abuse of discretion.52On the other hand, the FBI Report while corroborative of the alibi of petitioner
Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of
evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial
publicity waged in the press and broadcast media by the NBI.

Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where
the conflicting demands of freedom of speech and of the press, the public's right to information, and an
accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing
where the balance should be struck has divided men of learning as the balance keeps moving either on the
side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The
dance of balance is a difficult act to follow.

In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure,
few cases can match the high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even
today. Commentators still bombard the public with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case — the NBI, the respondents, their lawyers and their
sympathizers — have participated in this media blitz. The possibility of media abuses and their threat to a
fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the
seminal case of Richmond Newspapers, Inc. v.  Virginia,53 it was wisely held:

xxx xxx xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials
both here and in England had long been presumptively open, thus giving assurance that the
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proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs, a community
reaction of outrage and public protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for community concern, hostility, and
emotion. To work effectively, it is important that society's criminal process "satisfy the appearance
of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be
provided by allowing people to observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be concluded that a presumption
of openness inheres in the very nature of a criminal trial under this Nation's system of
justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment,
share a common core purpose of assuring freedom of communication on matters relating to the
functioning of government. In guaranteeing freedoms such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials so as to give meaning
to those explicit guarantees; the First Amendment right to receive information and ideas means, in
the context of trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at the time the
First Amendment was adopted. Moreover, the right of assembly is also relevant, having been
regarded not only as an independent right but also as a catalyst to augment the free exercise of the
other First Amendment rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally — and
representatives of the media — have a right to be present, and where their presence historically
has been thought to enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the public
the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal
trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials,
which people have exercised for centuries, important aspects of freedom of speech and of the
press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in  Martelino, et al. vs.  Alejandro, et al.,54 we
held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we
find nothing in the records that will prove that the tone and content, of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot
just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are
basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to
consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-
page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-
record evidence except evidence properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have
to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the
light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an
accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie
of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high
profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds

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judges that our ability to dispense impartial justice is an issue in every trial and in every criminal
prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting
the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done
and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the
part of the respondents. Costs against petitioners.

SO ORDERED.

6. People of the Philippines v. Hubert Webb

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 176389               December 14, 2010

ANTONIO LEJANO, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176864

PEOPLE OF THE PHILIPPINES, Appellee, 

vs.
HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ,
MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants.

DECISION

ABAD, J.:

Brief Background

On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were
brutally slain at their home in Parañaque City. Following an intense investigation, the police arrested a group of
suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered
them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose
interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre.

Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It
presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She
pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A.
Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits.
She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's
testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et
al.1

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The Regional Trial Court of Parañaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only
seven of the accused since Artemio Ventura and Joey Filart remained at large. 2 The prosecution presented Alfaro
as its main witness with the others corroborating her testimony. These included the medico-legal officer who
autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of
the Webb’s household, police officer Biong’s former girlfriend, and Lauro G. Vizconde, Estrellita’s husband.

For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it
took place. Webb’s alibi appeared the strongest since he claimed that he was then across the ocean in the United
States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove
this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature
of her testimony.

But impressed by Alfaro’s detailed narration of the crime and the events surrounding it, the trial court found a
credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by
grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaro’s April
28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend,
accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the
investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and
security she needed once she disclosed all about the Vizconde killings.

In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set
up for their defense. They paled, according to the court, compared to Alfaro’s testimony that other witnesses and
the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court
rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term
of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro
Vizconde.3

On appeal, the Court of Appeals affirmed the trial court’s decision, modifying the penalty imposed on Biong to six
years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde. 4 The
appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found
sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with
those who had a part in raping and killing Carmela and in executing her mother and sister.

On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three
against two to deny the motion,5 hence, the present appeal.

On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the
request of Webb to submit for DNA analysis the semen specimen taken from Carmela’s cadaver, which specimen
was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the
Rule on DNA Evidence6 to give the accused and the prosecution access to scientific evidence that they might want
to avail themselves of, leading to a correct decision in the case.

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same
having been turned over to the trial court. The trial record shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence in the case.

This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the government’s
failure to preserve such vital evidence has resulted in the denial of his right to due process.

Issues Presented

Accused Webb’s motion to acquit presents a threshold issue: whether or not the Court should acquit him outright,
given the government’s failure to produce the semen specimen that the NBI found on Carmela’s cadaver, thus
depriving him of evidence that would prove his innocence.

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In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano,
Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her
mother and sister. But, ultimately, the controlling issues are:

1. Whether or not Alfaro’s testimony as eyewitness, describing the crime and identifying Webb, Lejano,
Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to
belief; and

2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaro’s testimony that he
led the others in committing the crime.

The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission.

The Right to Acquittal

Due to Loss of DNA Evidence

Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of his right
to due process given the State’s failure to produce on order of the Court either by negligence or willful suppression
the semen specimen taken from Carmela.

The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was
found in her. It is true that Alfaro identified Webb in her testimony as Carmela’s rapist and killer but serious
questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On
the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a
promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of
identical twins.8 If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape
Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in
saying that he did.

Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage.
For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision in Arizona v.
Youngblood,10 where the U.S. Supreme Court held that due process does not require the State to preserve the
semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of
the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the
specimen and Webb in fact sought to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did
not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its
admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected
the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webb’s application for DNA testing, he allowed the proceeding to move
on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge
alleged arbitrary actions taken against him and the other accused. 11 They raised the DNA issue before the Court of
Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the
accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This,
even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accused’s
lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be
required to produce the semen specimen at some future time.

Now, to the merit of the case.

Alfaro’s Story

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Based on the prosecution’s version, culled from the decisions of the trial court and the Court of Appeals, on June
29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as
passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There,
Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging"
Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them
at a shabu house in Parañaque in January 1991, except Ventura whom she had known earlier in December 1990.

As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she
later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmela’s house
at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Parañaque City. Riding in her car, Alfaro and Estrada
trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian
who were on a Nissan Patrol car.

On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmela’s house.
Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice
before in January 1991. When Carmela came out, Alfaro gave her Webb’s message that he was just around.
Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return
after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang
Commercial Center.

The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded
to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked
somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the
latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and
she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela
also told Alfaro to blink her car’s headlights twice when she approached the pedestrian gate so Carmela would
know that she had arrived.

Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up
to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmela’s boyfriend. Alfaro looked for
her group, found them, and relayed Carmela’s instructions to Webb. They then all went back to the Ayala Alabang
Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of
Carmela’s male companion, Webb’s mood changed for the rest of the evening ("bad trip").

Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided
that it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako
ang susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and
drove into Pitong Daan Subdivision for the third time. They arrived at Carmela’s house shortly before midnight.

Alfaro parked her car between Vizconde’s house and the next. While waiting for the others to alight from their cars,
Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizconde’s residence to
cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling
Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb
told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito
lang kami, magbabantay lang kami."

Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura
followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes’ Nissan Sentra and
loosened the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate
and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb
looked each other in the eyes for a moment and, together, headed for the dining area.

As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she
replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura
pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was

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surprised to hear a woman’s voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She
found her other companions milling around it. Estrada who sat in the car asked her, "Okay ba?"

After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The
interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a
lady’s bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito,
maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main
door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but
none fitted the lock. She also did not find the car key.

Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area,
she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she
approached the master’s bedroom from where the noise came, opened the door a little, and peeked inside. The
unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back
on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket.
Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed.

Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told
her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others
who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she
did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a
stone and threw it at the main door, breaking its glass frame.

As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But
Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars
and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro
noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area.

The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF
Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It
was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to
be killed was Carmela’s mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit
naman pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on
him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly
stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up
someone on his cellular phone.

At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde
house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his
companions and told them, "We don’t know each other. We haven’t seen each other…baka maulit yan." Alfaro and
Estrada left and they drove to her father’s house. 12

1. The quality of the witness

Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or
egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her
story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so
she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her
subsistence and vices.

According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task
Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an
"asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this
information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaro’s
tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task

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force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one
of the rooms at the NBI offices.

When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day,
she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre.
Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not
happen and Sacaguing continued to press her, she told him that she might as well assume the role of her
informant. Sacaguing testified thus:

ATTY. ONGKIKO:

Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell
the Honorable Court?

xxxx

A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the
details of the massacre of the Vizconde family. That’s what she told me, Your Honor.

ATTY. ONGKIKO:

Q. And what did you say?

xxxx

A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in
due time, she will bring to me the man, and together with her, we will try to convince him to act as a state
witness and help us in the solution of the case.

xxxx

Q. Atty. Sacaguing, were you able to interview this alleged witness?

WITNESS SACAGUING:

A. No, sir.

ATTY. ONGKIKO:

Q. Why not?

WITNESS SACAGUING:

A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me
later that she could not and the man does not like to testify.

ATTY. ONGKIKO:

Q. All right, and what happened after that?

WITNESS SACAGUING:

A. She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong…"
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COURT:

How was that?

WITNESS SACAGUING:

A. "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang ‘yan."

xxxx

ATTY. ONGKIKO:

Q. All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?"

WITNESS SACAGUING:

A. I said, "hindi puwede yan, kasi hindi ka naman eye witness."

ATTY. ONGKIKO:

Q. And what was the reply of Ms. Alfaro?

WITNESS SACAGUING:

A. Hindi siya nakakibo, until she went away.

(TSN, May 28, 1996, pp. 49-50, 58, 77-79)

Quite significantly, Alfaro never refuted Sacaguing’s above testimony.

2. The suspicious details

But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence
at the scene of the crime? No doubt, yes.

Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about
what the police found at the crime scene and there were lots of speculations about them.

Secondly, the police had arrested some "akyat-bahay" group in Parañaque and charged them with the crime. The
police prepared the confessions of the men they apprehended and filled these up with details that the evidence of
the crime scene provided. Alfaro’s NBI handlers who were doing their own investigation knew of these details as
well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of
these evidentiary details and gain access to the documents.

Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati
RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession
ring true by matching some of its details with the physical evidence at the crime scene. Consider the following:

a. The Barroso gang members said that they got into Carmela’s house by breaking the glass panel of the front door
using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was
that Webb was Carmela’s boyfriend. Webb had no reason to smash her front door to get to see her.

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Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house,
Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde
residence. His action really made no sense. From Alfaro’s narration, Webb appeared rational in his decisions. It
was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at
that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come.

b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-
bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at
one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table.
He said he was looking for the front-door key and the car key.

Again, this portion of Alfaro’s story appears tortured to accommodate the physical evidence of the ransacked
house. She never mentioned Ventura having taken some valuables with him when they left Carmela’s house. And
why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already
gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the
reason Webb and his companions entered that house.

c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn
off the light. The confessions of the Barroso gang claimed that one of them climbed the parked car’s hood to reach
up and darken that light. This made sense since they were going to rob the place and they needed time to work in
the dark trying to open the front door. Some passersby might look in and see what they were doing.

Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura
climbed the car’s hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his
friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the
doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the car’s hood and be
seen in such an awkward position instead of going straight into the house.

And, thirdly, Alfaro was the NBI’s star witness, their badge of excellent investigative work.lavvphil After claiming that
they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously,
they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was
their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer
and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this
is mystifying.

At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the
circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But
when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially
suspected to be Alfaro’s Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping
and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and
you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case. 13

Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it
was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what
they did not do.

3. The quality of the testimony

There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An
understanding of the nature of things and the common behavior of people will help expose a lie. And it has an
abundant presence in this case.

One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be
Webb’s co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-
rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada)

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agreed in a chorus to his proposal. But when they got to Carmela’s house, only Webb, Lejano, Ventura, and Alfaro
entered the house.

Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaro’s car, which was parked on the
street between Carmela’s house and the next. Some of these men sat on top of the car’s lid while others milled on
the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were
having a drinking party in a nearby house. Obviously, the behavior of Webb’s companions out on the street did not
figure in a planned gang-rape of Carmela.

Two. Ventura, Alfaro’s dope supplier, introduced her for the first time in her life to Webb and his friends in a parking
lot by a mall. So why would she agree to act as Webb’s messenger, using her gas, to bring his message to
Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his
friends?

They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with
his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a
police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the
other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her,
how could she remember so much details that only a drug-free mind can?

Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go
out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for
Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a
man whom she thought was Carmela’s boyfriend. Alfaro’s trailing Carmela to spy on her unfaithfulness to Webb did
not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb
to freak out and decide to come with his friends and harm Carmela.

Four. According to Alfaro, when they returned to Carmela’s house the third time around midnight, she led Webb,
Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the
gang leader who decided what they were going to do. He decided and his friends agreed with him to go to
Carmela’s house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and
obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no
sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see.

Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino
yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this
because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb
and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential
confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.

But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro
had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She
went back into the house to watch as Webb raped Carmela on the floor of the master’s bedroom. He had
apparently stabbed to death Carmela’s mom and her young sister whose bloodied bodies were sprawled on the
bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after
Webb supposedly gave her a meaningful look.

Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the
car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and
turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led
Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was
suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused
with her own lies.

4. The supposed corroborations

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Intending to provide corroboration to Alfaro’s testimony, the prosecution presented six additional witnesses:

Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on
the stab wounds they sustained14 and the presence of semen in Carmela’s genitalia,15 indicating that she had been
raped.

Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m.
of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde
residence. He went there and saw the dead bodies in the master’s bedroom, the bag on the dining table, as well as
the loud noise emanating from a television set.16

White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of
Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a
three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw
the group in those two instances. And he did not notice anything suspicious about their coming and going.

But White’s testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian
and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro
testified that when the convoy of cars went back the second time in the direction of Carmela’s house, she alone
entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that
guardhouse did not notice her.

Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of
June 30 when he supposedly "cleaned up" Vizconde residence on Webb’s orders. What is more, White did not
notice Carmela arrive with her mom before Alfaro’s first visit that night. Carmela supposedly left with a male
companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the
subdivision. White actually discredited Alfaro’s testimony about the movements of the persons involved.

Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle
convoy,17 White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have
let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore,
provide corroboration to Alfaro’s testimony.1avvphi1

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last
week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the
United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged
down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed
to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had
a local sticker.

Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the
supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it,
Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating
Procedure required.18

But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a
Congressman’s son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did
he, contrary to prescribed procedure, record the visitor’s entry into the subdivision. It did not make sense that
Cabanacan was strict in the matter of seeing Webb’s ID but not in recording the visit.

Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She
testified that she saw Webb at his parents’ house on the morning of June 30, 1991 when she got the dirty clothes
from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At
about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maid’s quarters on
the way out. Finally, she saw Webb at 4 p.m. of the same day. 19

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On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she
was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the
Webb boys did and at what time. She could not remember any of the details that happened in the household on the
other days. She proved to have a selective photographic memory and this only damaged her testimony.

Gaviola tried to corroborate Alfaro’'s testimony by claiming that on June 30, 1991 she noticed bloodstains on
Webb's t-shirt.20 She did not call the attention of anybody in the household about it when it would have been a point
of concern that Webb may have been hurt, hence the blood.

Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muñoz, the
Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991.
Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being
the work of the housemaid charged with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she
claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they
were asleep.

And it did not make sense, if Alfaro’s testimony were to be believed that Webb, who was so careful and clever that
he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group,
would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4
a.m. as was her supposed habit.

Lolita De Birrer was accused Biong’s girlfriend around the time the Vizconde massacre took place. Birrer testified
that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when
Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting
at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood
from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with
aluminum cover from his drawer and hid it in his steel cabinet. 21

The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village
although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also
remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after
midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in
the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the
Vizconde residence on his return there hours later if he had the opportunity to do it earlier?

At most, Birrer’s testimony only established Biong’s theft of certain items from the Vizconde residence and gross
neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime.
Birrer’s testimony failed to connect Biong's acts to Webb and the other accused.

Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella
spoke to him of a rejected suitor she called "Bagyo," because he was a Parañaque politician’s son. Unfortunately,
Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony
contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be
believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he
could enter the house.

5. The missing corroboration

There is something truly remarkable about this case: the prosecution’s core theory that Carmela and Webb had
been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends
to her house to gang-rape her is totally uncorroborated!

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For instance, normally, if Webb, a Congressman’s son, courted the young Carmela, that would be news among her
circle of friends if not around town. But, here, none of her friends or even those who knew either of them came
forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with
her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her
testimony.

But, except for Alfaro, the NBI asset, no one among Carmela’s friends or her friends’ friends would testify ever
hearing of such relationship or ever seeing them together in some popular hangouts in Parañaque or Makati.
Alfaro’s claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and
Carmela’s life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong
because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable
facts of their personal histories. It is quite unreal.

What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom
Alfaro thought the way it looked was also Carmela’s lover. This was the all-important reason Webb supposedly had
for wanting to harm her. Again, none of Carmela’s relatives, friends, or people who knew her ever testified about
the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And
despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like
anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the
imagination of Alfaro, the woman who made a living informing on criminals.

Webb’s U.S. Alibi

Among the accused, Webb presented the strongest alibi.

a. The travel preparations

Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United
States (U.S.) to learn the value of independence, hard work, and money. 22 Gloria Webb, his aunt, accompanied
him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours
confirmed that Webb and his aunt used their plane tickets.

Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain
Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along
Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at
Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged
by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present
were his friends Paulo Santos and Jay Ortega.24

b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United
Airlines Flight 808.25 Before boarding his plane, Webb passed through the Philippine Immigration booth at the
airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webb’s visa,
stamped, and initialed his passport, and let him pass through. 26 He was listed on the United Airlines Flight’s
Passenger Manifest.27

On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was
recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System,
confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by
the U.S. Immigration and Naturalization Service,28 the computer-generated print-out of the US-INS indicating
Webb's entry on March 9, 1991,29 and the US-INS Certification dated August 31, 1995, authenticated by the
Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification. 30

c. Details of U.S. sojourn

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In San Francisco, Webb and his aunt Gloria were met by the latter’s daughter, Maria Teresa Keame, who brought
them to Gloria’s house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi
Esguerra, Gloria’s grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the
concert of Deelite Band in San Francisco.31 In the same month, Dorothy Wheelock and her family invited Webb to
Lake Tahoe to return the Webbs’ hospitality when she was in the Philippines. 32

In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California. 33 During his
stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler 34 and working at
his cousin-in-law’s pest control company.35 Webb presented the company’s logbook showing the tasks he
performed,36 his paycheck,37 his ID, and other employment papers. On June 14, 1991 he applied for a driver's
license38 and wrote three letters to his friend Jennifer Cabrera. 39

On June 28, 1991, Webb’s parents visited him at Anaheim and stayed with the Brottmans. On the same day, his
father introduced Honesto Aragon to his son when he came to visit. 40 On the following day, June 29, Webb, in the
company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota
car.41 Later that day, a visitor at the Brottman’s, Louis Whittacker, saw Webb looking at the plates of his new
car.42 To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle 43 and
a car plate "LEW WEBB."44 In using the car in the U.S., Webb even received traffic citations. 45

On June 30, 1991 Webb, again accompanied by his father and Aragon, 46 bought a bicycle at Orange Cycle
Center.47 The Center issued Webb a receipt dated June 30, 1991. 48 On July 4, 1991, Independence Day, the
Webbs, the Brottmans, and the Vaca family had a lakeside picnic. 49

Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left
for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez. 50 There, he met Armando Rodriguez
with whom he spent time, playing basketball on weekends, watching movies, and playing billiards. 51 In November
1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the
Rodriguez’s house.52 He left the Rodriguez’s home in August 1992, returned to Anaheim and stayed with his aunt
Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.

d. The second immigration checks

As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return
trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his
entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director
Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated
August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of
Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55 confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial
on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the
immigration officer who processed Webb’s reentry.56 Upon his return, in October 1992, Paolo Santos, Joselito
Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court.

e. Alibi versus positive identification

The trial court and the Court of Appeals are one in rejecting as weak Webb’s alibi. Their reason is uniform: Webb’s
alibi cannot stand against Alfaro’s positive identification of him as the rapist and killer of Carmela and, apparently,
the killer as well of her mother and younger sister. Because of this, to the lower courts, Webb’s denial and alibi
were fabricated.

But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have
no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by
the rule drilled into his head that a defense of alibi is a hangman’s noose in the face of a witness positively
swearing, "I saw him do it."? Most judges believe that such assertion automatically dooms an alibi which is so easy

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to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is
really innocent have any chance of prevailing over such a stone-cast tenet?

There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion,
often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he
saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A
lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as
forthrightly and unequivocally, "He did it!" without blinking an eye.

Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness. She is credible who can be
trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight
in gold.

And second, the witness’ story of what she personally saw must be believable, not inherently contrived. A witness
who testifies about something she never saw runs into inconsistencies and makes bewildering claims.

Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.

She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging
around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them.
Police assets are often criminals themselves. She was the prosecution’s worst possible choice for a witness.
Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she
could not produce a man she promised to the NBI.

And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of
the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible
act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly—just so
she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a
front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And
she had Ventura climbing the car’s hood, risking being seen in such an awkward position, when they did not need
to darken the garage to force open the front door—just so to explain the darkened light and foot prints on the car
hood.

Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and
Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining
outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the
developments inside the house, like if it was their turn to rape Carmela. Alfaro’s story that she agreed to serve as
Webb’s messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were
practically strangers, also taxes incredulity.

To provide basis for Webb’s outrage, Alfaro said that she followed Carmela to the main road to watch her let off a
lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed
leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for
later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their
presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a
grim scene is also quite inexplicable.

Ultimately, Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the
positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.

f. A documented alibi

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To establish alibi, the accused must prove by positive, clear, and satisfactory evidence 57 that (a) he was present at
another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at
the scene of the crime.58

The courts below held that, despite his evidence, Webb was actually in Parañaque when the Vizconde killings took
place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he
actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from
the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and
returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage
into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman
paradigm.

If one is cynical about the Philippine system, he could probably claim that Webb, with his father’s connections, can
arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992
arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement
was made. Besides, how could Webb fix a foreign airlines’ passenger manifest, officially filed in the Philippines and
at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration’s record system
those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the
U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible
answer to these questions.

The Court of Appeals rejected the evidence of Webb’s passport since he did not leave the original to be attached to
the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court
for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his
dissent,59the practice when a party does not want to leave an important document with the trial court is to have a
photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original.
Stipulations in the course of trial are binding on the parties and on the court.

The U.S. Immigration certification and the computer print-out of Webb’s arrival in and departure from that country
were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court
of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration
official who prepared the same. But this was unnecessary. Webb’s passport is a document issued by the Philippine
government, which under international practice, is the official record of travels of the citizen to whom it is issued.
The entries in that passport are presumed true.60

The U.S. Immigration certification and computer print-out, the official certifications of which have been
authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of
the U.S. Immigration office on Webb’s passport. They have the same evidentiary value. The officers who issued
these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of
official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement
and in the publicity of the record.61

The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office
said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the
U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:

While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of
lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials.
As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington
D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules
on protocol and standard procedure governing such request.

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the
Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol
procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his

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letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as
incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff,
Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by
Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who
are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor
may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist
visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was
looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S.. 62

The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the
passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it
would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9,
1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel
between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.

If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the
law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that
official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That
presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to
impeach the entries in Webb’s passport and the certifications of the Philippine and U.S.’ immigration services
regarding his travel to the U.S. and back. The prosecution’s rebuttal evidence is the fear of the unknown that it
planted in the lower court’s minds.

7. Effect of Webb’s alibi to others

Webb’s documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with
respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition
that Webb was in the U.S. when the crime took place, Alfaro’s testimony will not hold together. Webb’s participation
is the anchor of Alfaro’s story. Without it, the evidence against the others must necessarily fall.

CONCLUSION

In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of
the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable,
lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of
doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth.

Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who
proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not
produce?

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution
dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants
Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter
Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their
guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined
for another lawful cause.

Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate
implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this
Court within five days from receipt of this Decision.

SO ORDERED.

7. Dimatulac v. Villon
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FIRST DIVISION

[G.R. No. 127107. October 12, 1998]

PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners, vs.  HON. SESINANDO VILLON in his
capacity as Presiding Judge of the Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO
GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO YABUT, SERVILLANO
YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents.

DECISION
DAVIDE, JR., J.:
The issues raised by petitioners in their Memorandum[1] and by the Office of the Solicitor General in its
Comment[2] in this special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court
filed by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga, may
be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED GRAVE ABUSE OF
DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR REINVESTIGATION BY
PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO
HAD NOT YET BEEN BROUGHT INTO THE CUSTODY OF THE LAW; and (2) FILING THE
INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM SAID
PROSECUTORS RESOLUTION TO THE OFFICE OF THE SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION IN
PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS MOTIONS TO SET
ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE
PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL EVIDENCE TO PROVE THAT
MURDER AND NOT HOMICIDE WAS COMMITTED BY THE ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF
DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT THE CRIME COMMITTED WAS
MURDER AND DIRECTING THE PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION
FROM HOMICIDE TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas,
Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC) of
Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station against
private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino Mandap, Casti
David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3
Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain Danny, and a certain Koyang/Arding. The
complaint was docketed as Criminal Case No. 95-360.After conducting a preliminary examination in the form of
searching questions and answers, and finding probable cause, Judge Designate Serafin B. David of the MCTC
issued warrants for the arrest of the accused and directed them to file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while only
Francisco Yambao submitted his counter affidavit.[3]
On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution [4] in Criminal Case No.
95-360 finding reasonable ground to believe that the crime of murder had been committed and that the accused
were probably guilty thereof. His findings of fact and conclusions were as follows:

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That on or about November 3, 1995, all the accused under the leadership of Mayor Santiago Docsay
Yabut, including two John Does identified only as Dan/Danny and Koyang/Arding, went to Masantol,
Pampanga for the purpose of looking for a certain PO3 Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol, Pampanga inquiring
about PO3 Virgilio Dimatulac. Thereafter, they went to the house of Mayor Lacap for the purpose of
inquiring [about] the [the location of the] house of PO3 Virgilio Dimatulac, until finally, they were able to
reach the house of said Virgilio Dimatulac at San Nicolas, Masantol, Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all riding, stopped and
parked in front of the house of said PO3 Virgilio Dimatulac, some of the accused descended from the
truck and positioned themselves around the house while others stood by the truck and the Mayor stayed
[in] the truck with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao went inside the house of Virgilio Dimatulac [and]
were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go down to see the
Mayor outside in front of his house to say sorry.
[W]hen Virgilio Dimatulac went down from his house, suddenly [a] gun shot was heard and then, the son
of Virgilio Dimatulac, Peter Paul, started to shout the following words: What did you do to my father?!
One of the men of Mayor Docsay Yabut shot Virgilio Dimatulac, and as a consequence, he died; and
before he expired, he left a dying declaration pointing to the group of Mayor Docsay Yabut as the one
responsible.
That right after Virgilio Dimatulac was shot, accused Docsay Yabut ordered his men to go on board the
truck and immediately left away leaving Virgilio Dimatulac bleeding and asking for help.
On their way home to Minalin, accused Santiago Docsay Yabut gave money to accused John Doe
Dan/Danny and Francisco Boy Yambao was asked to bring the accused John Doe to Nueva Ecija which
he did.
Further, accused Santiago Docsay Yabut told his group to deny that they ever went to Masantol.
The court, after having conducted preliminary examination on the complainant and the witnesses
presented, [is] satisfied that there is a [sic] reasonable ground to believe that the crime of murder was
committed and that the accused in conspiring and confederating with one another are probably guilty
thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were issued against Santiago Yabut,
Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti David, Catoy Naguit, Fortunato
Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with no bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding, the court directed the police
authorities to furnish the court [a] descriptio personae of the accused for the purpose of issuing the
needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of witnesses for them to file their
counter-affidavits in accordance to [sic] law.
As of this date, only accused Francisco Boy Yambao filed his counter-affidavit and all the others waived
the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco Yambao which the court finds it
[sic] straightforward and more or less credible and seems to be consistent with truth, human nature and
[the] natural course of things and lack of motives [sic], the evidence of guilt against him is rather weak
[compared to] the others, which [is why] the court recommends a cash bond of P50,000.00 for his
provisional liberty, and the courts previous order of no bail for said accused is hereby reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed to forward the entire records of the
case to the Office of the Provincial Prosecutor of Pampanga for further action, together with the bodies of
accused Francisco Yambao and Juan Magat to be remanded to the provincial Jail of Pampanga.
[5]
 (underscoring supplied)
In a sworn statement,[6] petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut, accompanied by
a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about a problem between the
Mayor and Peter Pauls uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even prepared coffee for
them. Servillano and Martin Yabut told Virgilio to come down from his house and apologize to the Mayor, but hardly
had Virgilio descended when Peter Paul heard a gunshot. While Peter Paul did not see who fired the shot, he was
sure it was one of Mayor Yabuts companions.Peter Paul opined that his father was killed because the latter spoke

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to the people of Minalin, Pampanga, against the Mayor. Peter Paul added in a supplemental statement (Susog na
Salaysay)[7] that he heard Mayor Yabut order Virgilio killed.
In his Sinumpaang Salaysay,[8] Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in
Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at the police
station, three men approached him and asked for directions to the house of Mayor Epifanio Lacap.  Soriano
recognized one of the men as SPO1 Labet Malabanan of Minalin, Pampanga.The group left after Soriano gave
them directions, but one of the three returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano
replied that Dimatulac was at home. The group left on board a military truck headed for San Nicolas, Masantol,
Pampanga. Later that day, SPO2 Michael Viray received a telephone call at the police station reporting that
someone had shot Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a
reinvestigation. However, it is not clear from the record whether she conducted the same motu proprio or upon
motion of private respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the
accused who had not submitted their counter-affidavits before the MCTC, except accused Danny and
Koyang/Arding, submitted their counter-affidavits to Assistant Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, [9] Assistant Provincial Prosecutor Alfonso-Flores found that the
YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one another, but
that the offense committed was only homicide, not murder. In support of such finding, Alfonso-Flores reasoned
thus:
The complainant in this case charges the crime of Murder qualified by treachery. It must be noted that to
constitute treachery, two conditions must be present, to wit, 1) the employment of the [sic] means of
execution were give [sic] the person attacked no opportunity to defend himself or to retaliate;and 2) the
means of execution were deliberately or consciously adopted xxx.
In the instant case, the presence of the first requisite was clearly established by the evidence, such that
the attack upon the victim while descending the stairs was so sudden and unexpected as to render him
no opportunity to defend himself or to retaliate. However, the circumstances, as portrayed by witness
Peter Paul Dimatulac, negate the presence of the second requisite. According to the said witness, the
victim was already descending when Mayor Yabut commanded the assailant to shoot him, and
immediately thereafter, he heard the gunshot. This would therefore show that the assailant did not
consciously adopt the position of the victim at the time he fired the fatal shot. The command of Mayor
Yabut to shoot came so sudden as to afford no opportunity for the assailant to choose the means or
method of attack. The act of Mayor Yabut in giving the command to shoot further bolster[s] the fact that
the conspirator did not concert the means and method of attack nor the manner thereof. Otherwise there
would have been no necessity for him to give the order to the assailant. The method and manner of
attack was adopted by the assailant at the spur of the moment and the vulnerable position of the victim
was not deliberately and consciously adopted. Treachery therefore could not be appreciated and the
crime reasonably believe[d] to have been committed is Homicide as no circumstance would qualify the
killing to murder.
Alfonso-Flores then ruled:

WHEREFORE, in view of the foregoing, it is hereby recommended that:

1. An information be filed with the proper court charging Santiago, Servillano and Martin all
surnamed Yabut, and one John Doe alias Danny as conspirators in the crime of Homicide;
2. The case be dismissed against accused Evelino David, Justino Mandap a.k.a. Casti David,
Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir Dimatulac, Fortunato Mallari, Aniano
Magnaye, Gilberto Malabanan, Jesus dela Cruz and Joselito Miranda.

Bail of P20,000.00 for each of the accused is likewise recommended.

The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory
questions were propounded only to Peter Paul Dimatulac.
On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners,
appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ). [10]They alleged in
their appeal that:
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1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING THAT THERE WAS
NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT LIKEWISE ERRED IN NOT
APPRECIATING THE PRESENCE OF OTHER QUALIFYING CIRCUMSTANCES, TO WIT:
A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF ARMED MEN AND WITH
THE USE OF A PERSON TO INSURE OR AFFORD IMPUNITY;
B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR
PROMISE;
C. THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A DESTRUCTIVE CYCLONE,
WHEN THE SUPER-TYPHOON ROSING WAS RAGING ON NOVEMBER 3, 1995;
D. THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN DISMISSING
THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO BY RULING OUT
CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT
CHARGING FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores finding that the means of execution were not deliberately adopted, petitioners
asserted that the meeting of the accused and the victim was not accidental as the former purposely searched for
the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked to his co-accused
Danny, Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na (Just stay close to him, you know
what to do). Thus, Danny positioned himself near the stairs to goad the victim to come out of his house, while
Fortunato Mallari represented to the deceased that the latter was being invited by a certain General Ventura. When
the victim declined the invitation by claiming he was sick, accused Servillano Yabut persuaded the victim to come
down by saying, [T]o settle this matter, just apologize to the Mayor who is in the truck. In view of that enticement,
the victim came down, while Danny waited in ambush. To emphasize the accuseds resolve to kill the deceased,
petitioners further narrated that when the deceased ran away after the first shot, the gunman still pursued him,
while Mayor Santiago Yabut, who was a doctor, kept away at a safe distance and told everyone in the truck, Tama
na, bilisan ninyo, (Thats enough, move quickly) without giving medical assistance to the deceased and without
exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution [11] ordering the release of
accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then detained) in view of the
aforementioned resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor approved on
February 7, 1996.
On 28 February 1996, an Information [12] for Homicide, signed by Assistant Provincial Prosecutor Flores and
Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in
Macabebe, Pampanga, against the YABUTs and John Doe alias Danny Manalili and docketed as Criminal Case
No. 96-1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of Masantol, province of Pampanga,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, with deliberate intent to take the life of PO3
Virgilio A. Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A.
Dimatulac on his abdomen with the use of a handgun, thereby inflicting upon him a gunshot wound which
cause[d] the death of the said victim.

All contrary to law.

The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang
on 2/27/96, i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds of
the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest. [13]

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On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed two
(2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds [14] [sic]; and an (2)
Urgent Motion to Defer Proceedings,[15] copies of which were furnished the Office of the Provincial Prosecutor of
Pampanga. The second motion was grounded on the pendency of the appeal before the Secretary of Justice and a
copy thereof was attached to the motion. Judge Roura set the motions for hearing on 8 March 1996. [16]
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili. [17]
On 8 March 1996, the YABUTs filed their opposition [18] to the Motion to Issue Hold Departure Order and the
Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they submitted to
the jurisdiction of the trial court and were bound by the condition therein to surrender themselves whenever so
required by the court, and to seek permission from the court should any one of them desire to travel; and, as to the
second, the pendency of the appeal before the Secretary of Justice was not a ground to defer arraignment;
moreover, the trial court had to consider their right to a speedy trial, especially since there was no definite date for
the resolution of the appeal. Then invoking this Courts rulings in Crespo v. Mogul[19]  and Balgos v. Sandiganbayan,
[20]
 the YABUTs further asserted that petitioners should have filed a motion to defer the filing of the information for
homicide with the Office of the Provincial Prosecutor, or sought, from the Secretary of Justice, an order directing the
Provincial Prosecutor to defer the filing of the information in court.
In a Reply[21] to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of Court,
insisted on the need for a hold-departure order against the accused; argued that the accuseds right to a speedy trial
would not be impaired because the appeal to the Secretary of Justice was filed pursuant to Department Order No.
223 of the DOJ and there was clear and convincing proof that the killing was committed with treachery and other
qualifying circumstances not absorbed in treachery; and contended that the accuseds invocation of the right to a
speedy trial was inconsistent with their filing of various dilatory motions during the preliminary investigation.  The
YABUTs filed a Rejoinder[22] to this Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until such
time that all the accused who are out on bail are arraigned, but denied the Motion to Defer Proceedings as he found
no compelling reason therefor, considering that although the appeal was filed on 23 February 1996, the private
prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice. Judge
Roura also set the arraignment of the accused on 12 April 1996. [23]
It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer
Proceedings since, on 12 April 1996, Judge Roura issued an Order [24] giving the private prosecutor ten (10) days
from today within which to file a petition for certiorari questioning the order of the Court denying his motion for
reconsideration of the order of March 26, 1996. Arraignment was then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura [25] from hearing Criminal Case No. 96-
1667(M) on the ground that he: (a) hastily set the case for arraignment while the formers appeal in the DOJ was still
pending evaluation; and (b) prejudged the matter, having remarked in open court that there was nothing in the
records of the case that would qualify the case into Murder. At the same time, petitioners filed a petition for
prohibition[26] with the Court of Appeals docketed therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from
proceeding with the arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment [27] with the trial court
wherein he opposed the motion to inhibit Judge Roura; manifested that there is nothing in the record which shows
that the subject killing is qualified into murder; and announced that he will no longer allow the private prosecutor to
participate or handle the prosecution of [the] case in view of the latters petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54 of
the RTC, presided over by herein public respondent Judge Sesinando Villon. [28]
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case No.
96-1667(M).[29]
On 30 April 1996, petitioners filed with the trial court a Manifestation [30] submitting, in connection with their
Motion to Defer Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support their contention
that the offense committed was murder, not homicide. The documents which they claimed were not earlier
submitted by the public prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
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b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.

c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.
g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal Case No. 95-360,
containing the testimony of:
a. Peter Paul Dimatulac
b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan
d. PO3 Alfonso Canilao
h. Investigation Report- dated November 4, 1995.
i. Dying declaration of Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a
Resolution[31] directing respondent therein to file his comment to the petition within ten days from notice and to show
cause within the same period why no writ of preliminary injunction should be issued as prayed for in the
petition. However, the Court of Appeals deferred action on the prayer for a temporary restraining order until after
the required comment [was] submitted.
On 3 May 1996, petitioners filed an Ex-Parte Manifestation [32] with the RTC, furnishing the trial court with a
copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the trial court to the
rulings of this Court in Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal Gardens
Memorial Park Corp. vs. Court of Appeals as well as the decision in Paul G. Roberts vs. The Court of Appeals.
On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996. [33] On the
latter date, the YABUTs each entered a plea of not guilty. [34]
Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set Aside
Arraignment,[35] citing the resolution of 30 April 996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter
alia, deferred resolution on the application for a temporary restraining order until after the required comment is
submitted by the respondent; stressed that the filing of the information for the lesser offense of homicide was clearly
unjust and contrary to law in view of the unquestionable attendance of circumstances qualifying the killing to
murder; and asserted that a number of Supreme Court decisions supported suspension of the proceedings in view
of the pendency of their appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order[36] directing the accused to file their comment on the Urgent
Motion to Set Aside Arraignment within fifteen days from notice.
In a letter[37] addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary Teofisto
Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that treachery was
present and directed the Provincial Prosecutor of San Fernando, Pampanga to amend the information filed against
the accused from homicide to murder, and to include Fortunato Mallari as accused in the amended information.  The
findings and conclusions of Secretary Guingona read as follows:
Contrary to your findings, we find that there is treachery that attended the killing of PO3
Dimatulac. Undisputedly, the victim was suddenly shot while he was descending the stairs. The attack
was unexpected as the victim was unarmed and on his way to make peace with Mayor Yabut, he was
unsuspecting so to speak. From the circumstances surrounding his killing, PO3 Dimatulac was indeed
deprived of an opportunity to defend himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was consciously and deliberately adopted by
the respondents to ensure the accomplishment of their criminal objective. The admission of respondent
Malabanan is replete with details on how the principal respondent, Mayor Yabut, in conspiracy with the
assailant and others, had consciously and deliberately adopted means to ensure the execution of the
crime. According to him, while they were on their way to the victims house, Mayor Yabut already
instructed Danny, the assailant, that, Dikitan mo lang, alam no na king ano ang gagawin mo, bahala ka
na. This explains why Danny positioned himself near the stairs of the victims house armed with a
handgun, such positioning was precisely adopted as a means to ensure the accomplishment of their evil

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design and Mayor Yabut ordered nobody else but Danny to shoot the victim while descending the stairs
as his position was very strategic to ensure the killing of the victim.
As has been repeatedly held, to constitute treachery, two conditions must be present, to wit: (1)
employment of means of execution that gives the person [attacked] no opportunity to defend himself or
retaliate; and (2) the means of execution were deliberately or consciously adopted (People vs. Talaver,
230 SCRA 281 [1994]). In the case at bar, these two (2) requisites are present as established from the
foregoing discussion. Hence, there being a qualifying circumstance of treachery, the crime committed
herein is murder, not homicide (People vs. Gapasin, 231 SCRA 728 [1994]).
Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao, we find sufficient
evidence against Mallari as part of the conspiracy but not against Yambao. As can be gleaned from the
sworn-statement of Yambao, which appears to be credible, Mallari tried also to persuade the victim to go
with them, using as a reason that he (victim) was being invited by General Ventura. He was also seen
trying to fix the gun which was used in killing the victim. These actuations are inconsistent with the claim
that his presence at the crime scene was merely passive.
On the other hand, we find credible the version and explanation of Yambao. Indeed, under the obtaining
circumstances, Yambao had no other option but to accede to the request of Mayor Yabut to provide
transportation to the assailant. There being an actual danger to his life then, and having acted under the
impulse of an uncontrollable fear, reason dictates that he should be freed from criminal liability. [38]
The YABUTs moved to reconsider the resolution, [39] citing Section 4 of Administrative/Administration Order No.
223 of the DOJ.[40]
In an Ex-Parte Manifestation[41] dated 21 June 1996, petitioners called the trial courts attention to the resolution
of the Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation and Motion [42] dated 1
July 1996, petitioners asked the trial court to grant their motion to set aside arraignment. Attached thereto was a
copy of the Manifestation and Motion [43] of the Solicitor General dated 18 June 1996 filed with the Court of Appeals
in CA-G.R. SP No. 40393 wherein the Solicitor General joined cause with petitioners and prayed that in the better
interest of justice, [the] Petition for Prohibition be GRANTED and a writ of prohibition be ISSUED forthwith. In
support of said prayer, the Solicitor General argued:
2. There is merit to the cause of petitioners. If the Secretary of Justice would find their Appeal
meritorious, the Provincial Prosecutor would be directed to upgrade the Information to Murder
and extreme prejudice if not gross injustice would thereby have been avoided.
3 Consequently, the undersigned counsel interpose no objection to the issuance of a writ of
prohibition enjoining respondent Judge from holding further proceedings in Criminal Case No.
96-1667-M, particularly in holding the arraignment of the accused, pending resolution of the
Appeal with the Secretary of Justice.
The YABUTs opposed[44] petitioners Manifestation and Motion dated 1 July 1996 because they had already been
arraigned and, therefore, would be placed in double jeopardy; and that the public prosecutor -- not the private
prosecutor -- had control of the prosecution of the case.
In his letter[45] dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of Justice
set aside his order to amend the information from homicide to murder considering that the appeal was rendered
moot and academic by the arraignment of the accused for homicide and their having entered their pleas of not
guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been arraigned on
May 20, 1996 and had pleaded not guilty to the charge of homicide, as shown by a copy of the court
order dated May 20, 1996, the petition for review insofar as the respondents-Yabut are concerned has
been rendered moot and academic.
However, the Secretary reiterated that Fortunato Mallari should be included in the information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to Admit
Amended Information.[46] The Amended Information[47] merely impleaded Fortunato Mallari as one of the accused.
In his Order[48] of 1 August 1996, Judge Villon denied petitioners motion to set aside arraignment, citing
Section 4, DOJ Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996.  Petitioners
forthwith moved for reconsideration [49] of the order, arguing that the Motion to Defer the Proceedings filed by
petitioners was meritorious and did not violate the accuseds right to speedy trial; and that the DOJ had ruled that
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the proper offense to be charged was murder and did not reverse such finding. Petitioners also cited the Solicitor
Generals stand[50] in CA-G.R. SP No. 40393 that holding accuseds arraignment in abeyance was proper under the
circumstances. Finally, petitioners contended that in proceeding with the arraignment despite knowledge of a
petition for prohibition pending before the Court of Appeals, the trial court violated Section 3(d), Rule 71 of the
Rules of Court on indirect contempt. The YABUTs opposed the motion on the ground that it raised no argument
which had not yet been resolved.[51]
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari, [52] which
the trial court granted in view of petitioners motion for reconsideration of the courts order denying petitioners motion
to set aside private respondents arraignment. [53] As expected, Mallari moved to reconsider the trial courts order and
clamored for consistency in the trial courts rulings.[54]
In an order[55] dated 15 October 1996, Judge Villon denied reconsideration of the order denying petitioners
motion to set aside arraignment, citing the YABUTs right to a speedy trial and explaining that the prosecution of an
offense should be under the control of the public prosecutor, whereas petitioners did not obtain the conformity of
the prosecutor before they filed various motions to defer proceedings.Considering said order, Judge Villon deemed
accused Mallaris motion for reconsideration moot and academic.  [56]
On 16 October 1996, the Court of Appeals promulgated its decision [57] in CA-G.R. SP No. 40393 dismissing
the petition therein for having become moot and academic in view of Judge Rouras voluntary inhibition, the
arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of petitioners appeal as it had been
mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was
ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of
Macabebe, Pampanga, which was previously presided over by Judge Villon. [58] Judge Roura informed the Office of
the Court Administrator and this Court that he had already inhibited himself from hearing Criminal Case No. 96-
1667(M).[59]
On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition and Mandamus. They
urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment; set aside
arraignment of private respondents; order that no further action be taken by any court in Criminal Case No. 96-
1667(M) until this petition is resolved; and order respondents Secretary of Justice and the prosecutors concerned to
amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private respondents
tricked the victim into coming out of his house and then shot him while he was going down the stairs. There was,
petitioners claim, an orchestrated effort on the part of [private respondents] to manipulate the rules on
administrative appeals with the end in view of evading prosecution for the [non-bailable] offense of murder, as
shown by the following events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the crime committed to
homicide, a bailable offense, on strength of a motion for reinvestigation filed by the YABUTs who had
not yet been arrested.
(2) Respondent Mayor and his companions returned to Minalin after the killing and went into hiding for
four (4) months until the offense charged was downgraded.
(3) The information for homicide was nevertheless filed despite notice to the Office of the Provincial
Prosecutor of the appeal filed with the Secretary of Justice and request to defer any action on the
case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the private prosecutor from further
participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in open court that there was
no prima facie case for murder, notwithstanding the pendency of petitioners appeal with respondent
Secretary of Justice.
(6) Even before receipt by petitioners of Judge Rouras order inhibiting himself and the order regarding the
transfer of the case to Branch 54, public respondent Judge Villon set the case for arraignment and,
without notice to petitioners, forthwith arraigned the accused on the information for homicide on 20
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May 1996, despite the pendency of the petition for prohibition before the Court of Appeals and of the
appeal before the DOJ.
(7) The Pampanga Provincial Prosecutors Office did not object to the arraignment nor take any action to
prevent further proceedings on the case despite knowledge of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of the Secretary of Justice
directing the amendment of the information to charge the crime of murder.
Petitioners argue that in light of Roberts, Jr. v. Court of Appeals,[60] respondent Judge acted in excess of his
jurisdiction in proceeding with private respondents' arraignment for homicide and denying petitioners' motion to set
aside arraignment. Moreover, although respondent Judge Villon was not the respondent in CA-G.R. SP No. 40393,
he should have deferred the proceedings just the same as the very issue in said case was whether or not the RTC
could proceed with the arraignment despite the pending review of the case by respondent Secretary of
Justice. Further, Judge Villon unjustly invoked private respondents right to a speedy trial, after a lapse of barely
three (3) months from the filing of the information on 23 February 1996; overlooked that private respondents were
estopped from invoking said right as they went into hiding after the killing, only to resurface when the charge was
reduced to homicide; and failed to detect the Provincial Prosecutor's bias in favor of private respondents. Judge
Villon should have been more circumspect as he knew that by proceeding with the arraignment, the appeal with the
DOJ would be rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the
Secretary of Justice once the accused had already been arraigned applies only to instances where the appellants
are the accused, since by submitting to arraignment, they voluntarily abandon their appeal.
In their comment, private respondents contend that no sufficient legal justification exists to set aside private
respondents' arraignment, it having already been reset twice from 12 April 1996 to 3 May 1996, due to petitioners
pending appeal with the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of this case to Branch
54. Moreover, as of the latter date, the DOJ had not yet resolved petitioners appeal and the DOJ did not request
that arraignment be held in abeyance, despite the fact that petitioners appeal had been filed as early as 23
February 1996, at least 86 days prior to private respondents arraignment. They point out that petitioners did not
move to reconsider the RTC's 26 March 1996 denial of the Motion to Defer, opting instead for Judge Rouras
recusal and recourse to the Court of Appeals, and as no restraining order was issued by the Court of Appeals, it
was but proper for respondent Judge to proceed with the arraignment of private respondents, to which the public
and private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary, involving as it did the exercise of
discretionary powers, is not subject to judicial review. Under the principle of separation of powers, petitioners'
recourse should have been to the President. While as regards petitioners plea that the Secretary be compelled to
amend the information from homicide to murder, private respondents submit that mandamus does not lie, as the
determination as to what offense was committed is a prerogative of the DOJ, subject only to the control of the
President.
As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is
allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable cause, in
which case, only the accused can appeal. Hence, petitioners appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public
prosecutor of the private prosecutor's authority to handle the case.
In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the petition be
denied because: (a) in accordance with Section 4 of DOJ Order No. 223, upon arraignment of the accused, the
appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the filing of the information for homicide was
in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation from
a resolution finding probable cause shall not hold the filing of the information in court; (c) the trial court even
accommodated petitioners by initially deferring arraignment pending resolution by the Court of Appeals of the
petition for prohibition, and since said Court did not issue any restraining order, arraignment was properly had; and
(d) reliance on Roberts is misplaced, as there, accused Roberts and others had not been arraigned and respondent
Judge had ordered the indefinite postponement of the arraignment pending resolution of their petitions before the
Court of Appeals and the Supreme Court.

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We now consider the issues enumerated at the outset of this ponencia.

Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude that
something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest advantage to
the accused, more particularly the YABUTs, and grave prejudice to the State and to private complainants, herein
petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for their
temporary liberty. However, for one reason or another undisclosed in the record, the YABUTs were not arrested;
neither did they surrender. Hence, they were never brought into the custody of the law. Yet, Asst. Provincial Fiscal
Alfonso-Reyes, either motu proprio or upon motion of the YABUTs, conducted a reinvestigation. Since said
accused were at large, Alfonso-Reyes should not have done so. While it may be true that under the second
paragraph of Section 5, Rule 112 of the Rules of Court, the provincial prosecutor may disagree with the findings of
the judge who conducted the preliminary investigation, as here, this difference of opinion must be on the basis of
the review of the record and evidence transmitted by the judge. Were that all she did, as she had no other option
under the circumstances, she was without any other choice but to sustain the MCTC since the YABUTs and all
other accused, except Francisco Yambao, waived the filing of their counter-affidavits.  Then, further stretching her
magnanimity in favor of the accused, Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without
first demanding that they surrender because of the standing warrants of arrest against them. In short, Alfonso-
Reyes allowed the YABUTs to make a mockery of the law in order that they gain their provisional liberty pending
trial and be charged with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused Danny,
despite the fact that they were charged with homicide and they were, at the time, fugitives from justice for having
avoided service of the warrant of arrest issued by the MCTC and having failed to voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecutions appeal to the DOJ from her resolution. She
could not have been ignorant of the fact that the appeal vigorously assailed her finding that there was no qualifying
circumstance attending the killing, and that the private prosecution had convincing arguments to support the
appeal. The subsequent resolution of the Secretary of Justice confirmed the correctness of the private prosecutions
stand and exposed the blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28 February
1996. It is interesting to note that while the information was dated 29 January 1996, it was approved by the
Provincial Prosecutor only on 27 February 1996. This simply means that the Office of the Prosecutor was not,
initially, in a hurry to file the Information. No undue prejudice could have been caused to the YABUTs if it were filed
even later for the YABUTs were still at large; in fact, they filed their bonds of  P20,000.00 each only after the filing of
the Information. If Alfonso-Flores was extremely generous to the YABUTs, no compelling reason existed why she
could not afford the offended parties the same courtesy by at least waiting for instructions from the Secretary of
Justice in view of the appeal, if she were unwilling to voluntarily ask the latter for instructions. Clearly, under the
circumstances, the latter course of action would have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of Pampanga did
not even bother to motu proprio inform the trial court that the private prosecution had appealed from the resolution
of Alfonso-Flores and had sought, with all the vigour it could muster, the filing of an information for murder, as found
by the MCTC and established by the evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial
Prosecutor did not even have the decency to agree to defer arraignment despite its continuing knowledge of the
pendency of the appeal. This amounted to defiance of the DOJs power of control and supervision over prosecutors,
a matter which we shall later elaborate on. Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu,
had the temerity, if not arrogance, to announce that he will no longer allow the private prosecutor to participate or
handle the prosecution of [the] case simply because the private prosecution had asked for the inhibition of Judge
Roura. Said prosecutor forgot that since the offended parties here had not waived the civil action nor expressly
reserved their right to institute it separately from the criminal action, then they had the right to intervene in the
criminal case pursuant to Section 16 of Rule 110 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores.  The
last paragraph of Section 4 of Rule 112 of the Rules of Court provides:

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If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city
fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information
without conducting another preliminary investigation or to dismiss or move for the dismissal of the
complaint or information.
It is clear from the above, that the proper party referred to therein could be either the offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretarys power of control over
prosecutors. Thus, in Ledesma v. Court of Appeals,[61] we emphatically held:
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the
Revised Administrative Code,[62] 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[s] 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; x x x x.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which
read:

Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be
assigned to them by the Secretary of Justice in the interest of public service.
xxx xxx xxx
Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a
specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office,
division or service, the same shall be understood as also conferred upon the proper
Department Head who shall have authority to act directly in pursuance thereof, or to review,
modify, or revoke any decision or action of said chief of bureau, office, division or service.
Supervision and control of a department head over his subordinates have been defined in administrative
law as follows:
In administrative law, supervision means overseeing or the power or authority of an officer to
see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the
former may take such action or step as prescribed by law to make them perform such
duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds
basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or
negligence committed in the initial steps of an administrative activity or by an administrative agency
should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after
administrative remedies are exhausted may judicial recourse be allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to
appeal from resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and Section 4,
respectively. Section 1 thereof provides, thus:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal
to the Secretary of Justice except as otherwise provided in Section 4 hereof.

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While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not barred from
appealing from the resolution holding that only homicide was committed, considering that their complaint was for
murder. By holding that only homicide was committed, the Provincial Prosecutors Office of Pampanga effectively
dismissed the complaint for murder. Accordingly, petitioners could file an appeal under said Section 1. To rule
otherwise would be to forever bar redress of a valid grievance, especially where the investigating prosecutor, as in
this case, demonstrated what unquestionably appeared to be unmitigated bias in favor of the accused. Section 1 is
not to be literally applied in the sense that appeals by the offended parties are allowed only in cases of dismissal of
the complaint, otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private respondents that Section 4 of DOJ
Department Order No. 223 is the controlling rule; hence, pursuant to the second paragraph thereof, the appeal of
petitioners did not hold the filing of the information. As stated above, Section 4 applies even to appeals by the
respondents or accused. The provision reads:
SEC. 4. Non-appealable cases.  Exceptions. - No appeal may be taken from a resolution of the Chief
State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except
upon a showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest
error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant is arraigned during the pendency of the appeal , said appeal shall be
dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the
filing of the information in court. (underscoring supplied)
The underlined portion indisputably shows that the section refers to appeals by respondents or accused.  So
we held in Marcelo v. Court of Appeals[63] that nothing in the ruling in Crespo v. Mogul,[64]reiterated in Roberts v.
Court of Appeals,[65] forecloses the power or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases despite an information already having been filed in court. The Secretary of Justice is
only enjoined to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the
prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the
prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of
the court. In Roberts we went further by saying that Crespo could not have foreclosed said power or authority of the
Secretary of Justice without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules
of Court which is quoted above.
Indubitably then, there was, on the part of the public prosecution, indecent haste in the filing of the information
for homicide, depriving the State and the offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in his
order of 26 March 1996,[66] he deferred resolution on the motion for a hold departure order until such time that all
the accused who are out on bail are arraigned and denied the motion to defer proceedings for the reason that the
private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of
Justice. Neither rhyme nor reason or even logic, supports the ground for the deferment of the first
motion. Precisely, immediate action thereon was called for as the accused were out on bail and, perforce, had all
the opportunity to leave the country if they wanted to. To hold that arraignment is a prerequisite to the issuance of a
hold departure order could obviously defeat the purpose of said order. As to the second motion, Judge Roura was
fully aware of the pendency of petitioners appeal with the DOJ, which was filed as early as 23 February 1996. In
fact, he must have taken that into consideration when he set arraignment of the accused only on 12 April 1996, and
on that date, after denying petitioners motion to reconsider the denial of the motion to defer proceedings, he further
reset arraignment to 3 May 1996 and gave petitioners ten (10) days within which to file a petition for certiorari to
question his denial of the motion to defer and of the order denying the reconsideration.  In any event, the better part
of wisdom suggested that, at the very least, he should have asked petitioners as regards the status of the appeal or
warned them that if the DOJ would not decide the appeal within a certain period, then arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time, moved
to inhibit Judge Roura. These twin moves prompted Judge Roura to voluntarily inhibit himself from the case on 29
April 1996[67] and to transfer the case to the branch presided by public respondent Judge Villon. The latter received
the record of the case on 30 April 1996. From that time on, however, the offended parties did not receive any better
deal. Acting with deliberate dispatch, Judge Villon issued an order on 3 May 1996 setting arraignment of the
accused on 20 May 1996. If Judge Villon only perused the record of the case with due diligence, as should be done
by anyone who has just taken over a new case, he could not have helped but notice: (a) the motion to defer further

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proceedings; (2) the order of Judge Roura giving petitioners ten days within which to file a petition with the Court of
Appeals; (3) the fact of the filing of such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of
Appeals directing respondents to comment on the petition and show cause why the application for a writ of
preliminary injunction should not be granted and deferring resolution of the application for a temporary restraining
order until after the required comment was filed, which indicated a prima facie showing of merit; (5) the motion to
inhibit Judge Roura precisely because of his prejudgment that the crime committed was merely homicide; (6) Judge
Rouras subsequent inhibition; (7) various pieces of documentary evidence submitted by petitioners on 30 April
1996 supporting a charge of murder, not homicide; and (8) most importantly, the pending appeal with the DOJ.
All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude as
these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be precipitately
held. However, Judge Villon cursorily ignored all this. While it may be true that he was not bound to await the DOJs
resolution of the appeal, as he had, procedurally speaking, complete control over the case and any disposition
thereof rested on his sound discretion, [68] his judicial instinct should have led him to peruse the documents
submitted on 30 April 1996 and to initially determine, for his own enlightenment with serving the ends of justice as
the ultimate goal, if indeed murder was the offense committed; or, he could have directed the private prosecutor to
secure a resolution on the appeal within a specified time. Given the totality of circumstances, Judge Villon should
have heeded our statement in Marcelo[69] that prudence, if not wisdom, or at least, respect for the authority of the
prosecution agency, dictated that he should have waited for the resolution of the appeal then pending before the
DOJ. All told, Judge Villon should not have merely acquiesced to the findings of the public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the
arraignment of the YABUTs on the assailed information for homicide. Again, the State and the offended parties
were deprived of due process.
Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to function in a
manner consistent with the principle of accountability inherent in the public trust character of a public office. Judges
Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in the public interest that
every crime should be punished[70] and judges and prosecutors play a crucial role in this regard for theirs is the
delicate duty to see justice done, i.e., not to allow the guilty to escape nor the innocent to suffer. [71]
Prosecutors must never forget that, in the language of Suarez v. Platon,[72] they are the representatives not of
an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win every case
but that justice be done. As such, they are in a peculiar and every definite sense the servants of the law, whose
two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to
prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved, but at all times
cautious that they refrain from improper methods designed to secure a wrongful conviction. [73] With them lies the
duty to lay before the court the pertinent facts at the judges disposal with strict attention to punctilios, thereby
clarifying contradictions and sealing all gaps in the evidence, with a view to erasing all doubt from the courts mind
as to the accuseds innocence or guilt.
The judge, on the other hand, should always be imbued with a high sense of duty and responsibility in the
discharge of his obligation to promptly and properly administer justice. [74] He must view himself as a priest, for the
administration of justice is akin to a religious crusade. Thus, exerting the same devotion as a priest in the
performance of the most sacred ceremonies of religious liturgy, the judge must render service with impartiality
commensurate with the public trust and confidence reposed in him. [75] Although the determination of a criminal case
before a judge lies within his exclusive jurisdiction and competence, [76] his discretion is not unfettered, but rather
must be exercised within reasonable confines. [77] The judges action must not impair the substantial rights of the
accused, nor the right of the State and offended party to due process of law. [78]
Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a
triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. [79] Justice then
must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other.

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In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon was
gross, grave and palpable, denying the State and the offended parties their day in court, or in a constitutional
sense, due process. As to said judges, such amounted to lack or excess of jurisdiction, or that their court was
ousted of the jurisdiction in respect thereto, thereby nullifying as having been done without jurisdiction, the denial of
the motion to defer further hearings, the denial of the motion to reconsider such denial, the arraignment of the
YABUTs and their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy the
situation before the onset of any irreversible effects. We thus have no other recourse, for as Chief Justice Claudio
Teehankee pronounced in Galman v. Sandiganbayan:[80]
The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would
have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity
to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and
committed to render impartial justice to all alike who seek the enforcement or protection of a right or the
prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and
prejudice.
We remind all members of the pillars of the criminal justice system that theirs is not a mere ministerial task to
process each accused in and out of prison, but a noble duty to preserve our democratic society under a rule of law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution, holding
that murder was committed and directing the Provincial Prosecutor to accordingly amend the information, solely on
the basis of the information that the YABUTs had already been arraigned. In so doing, the DOJ relinquished its
power of control and supervision over the Provincial Prosecutor and the Assistant Provincial Prosecutors of
Pampanga; and meekly surrendered to the latters inappropriate conduct or even hostile attitude, which amounted
to neglect of duty or conduct prejudicial to the best interest of the service, as well as to the undue haste of Judge
Roura and Villon in respect of the arraignment of the YABUTs. The sins of omission or commission of said
prosecutors and judges resulted, in light of the finding of the DOJ that the crime committed was murder, in
unwarranted benefit to the YABUTs and gross prejudice to the State and the offended parties. The DOJ should
have courageously exercised its power of control by taking bolder steps to rectify the shocking mistakes so far
committed and, in the final analysis, to prevent further injustice and fully serve the ends of justice.  The DOJ could
have, even if belatedly, joined cause with petitioners to set aside arraignment. Further, in the exercise of its
disciplinary powers over its personnel, the DOJ could have directed the public prosecutors concerned to show
cause why no disciplinary action should be taken against them for neglect of duty or conduct prejudicial to the best
interest of the service in not, inter alia, even asking the trial court to defer arraignment in view of the pendency of
the appeal, informing the DOJ, from time to time, of the status of the case, and, insofar as prosecutor Datu was
concerned, in disallowing the private prosecutor from further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the regularity
of arraignment, considering that the appeal was received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio reconsideration of the 7 June 1996 resolution of the DOJ was
attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of
discretion on the part of the trial court, the acquittal of the accused [81] or the dismissal of the case [82] is void, hence
double jeopardy cannot be invoked by the accused. If this is so in those cases, so must it be where the arraignment
and plea of not guilty are void, as in this case as above discussed.
WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996 denying the
Motion to Defer Proceedings and of 12 April 1996 denying the motion to reconsider the denial of said Motion to
Defer Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the arraignment
to 20 May 1998 and of 15 October 1996 denying the Motion to Set Aside Arraignment in Criminal Case No. 96-
1667(M) are declared VOID and SET ASIDE. The arraignment of private respondents Mayor Santiago Yabut,
Servillano Yabut and Martin Yabut and their separate pleas of not guilty are likewise declared VOID and SET
ASIDE. Furthermore, the order of public respondent Secretary of Justice of 1 July 1996 is SET ASIDE and his order
of 7 June 1996 REINSTATED.

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The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the
Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for
murder. Thereafter the trial court shall proceed in said case with all reasonable dispatch.
No pronouncement as to costs.
SO ORDERED.

8. Roberts v. Court of Appeals

EN BANC

[G.R. No. 113930. March 5, 1996]

PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS LORENZO, JR., AMAURY R.
GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG
FUI, petitioners, vs. THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity
as the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G.
EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as
Members of the Department of Judge 349 Committee, and the CITY PROSECUTOR OF QUEZON
CITY, respondents.
ROBERTO DELGADO, petitioner-intervenor.

DECISION
DAVIDE, JR., J.:
We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-
G.R. SP No. 31226,[1] which dismissed the petition therein on the ground that it has been mooted with the release
by the Department of Justice of its decision x x x dismissing petitioners petition for review; (b) the resolution of the
said court of 9 February 1994[2]denying the petitioners motion to reconsider the decision; (c) the order of 17 May
1993[3] of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) of Quezon
City in Criminal Case No. Q-93-43198 denying petitioners motion to suspend proceedings and to hold in abeyance
the issuance of the warrants of arrest and the public prosecutors motion to defer arraignment; and (d) the resolution
of 23 July 1993 and 3 February 1994 [4] of the Department of Justice, (DOJ) dismissing petitioners petition for the
review of the Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider
the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition:
I

Respondent Judge acted with grave abuse of discretion when he ordered the arrest of the petitioners without
examining the record of the preliminary investigation and in determining for himself on the basis thereof the
existence of probable cause.
II

The Department of Justice 349 Committee acted with grave abuse of discretion when it refused to review the City
Prosecutors Joint Resolution and dismissed petitioners appeal therefrom.
III

The Court of Appeals acted with grave abuse of discretion when it upheld the subject order directing the issuance
of the warrants of arrest without assessing for itself whether based on such records there is probable cause against
petitioners.
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IV

The facts on record do not establish prima facie  probable cause and Criminal Case No. Q-93-43198 should have
been dismissed.[5]
The antecedents of this petition are not disputed.
Several thousand holders[6] of 349 Pepsi crowns in connection with the Pepsi Cola Products Phils., Inc.s
(PEPSIs) Number Fever Promotion [7] filed with the Office of the City Prosecutor of Quezon City complaints against
the petitioners in their respective capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-
Chairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI. The complaints
respectively accuse the petitioners and the other PEPSI officials of the following crimes: (a) estafa; (b) violation of
R.A. No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913; [8] and (d)
violation of Act No. 2333, entitled An Act Relative to Untrue, Deceptive and Misleading Advertisements,  as
amended by Act No. 3740.[9]
After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a
Joint Resolution[10] where he recommended the filing of an information against the petitioners and others for the
violation of Article 3 18 of the Revised Penal Code and the dismissal of the complaints for the violation of Article
315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No.
913. The dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo C. Salazar,
Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R.
Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui, Quintin J.
Gomez, Jr. and Chito V. Gutierrez for estafa under Article 318, Revised Penal Code, while the
complaint for violation of Article 315, 2(d), Revised Penal Code against same respondents Juanito R.
Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus
M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda 0. Madarang, Jack Gravey,
Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex 0. Caballes, Sandy Sytangco, Jorge W.
Drysdale, Richard Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo
B. San Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio
Muniosguren, James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A. 7394 otherwise known as the Consumer
Act of the Philippines and violation of Act 2333 as amended by Act 3740 and E 0. 913 be also
dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117, 425, 703 and
373, respectively, alleged to be likewise winning ones be further investigated to afford respondents a
chance to submit their counter-evidence.[11]
On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the modification that
Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground of
insufficiency of evidence.[12]
The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P.
Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City, and was filed with
the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-43198. [13] The information
reads as follows:

The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR. RODOLFO C. SALAZAR, LUIS
F. LORENZO, SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N.
FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of ESTAFA,
committed as follows:

That in the month of February, 1992, in Quezon City, Philippines and for sometime prior and subsequent thereto,
the above-named accused -
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Paul G. Roberts, Jr. ) being then the Presidents

Rodolfo G. Salazar and Executive Officers

Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors

Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board

J. Roberto Delgado ) being then Members of the Board

Amaury R. Gutierrez )
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, Jr. and
Wong Fong Fui )

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one another, with intent of gain, by
means of deceit, fraudulent acts or false pretenses, executed prior to or simultaneously with the commission of the
fraud, did then and there willfully, unlawfully and feloniously defraud the private complainants whose names with
their prizes claimed appear in the attached lists marked as Annexes A to A-46; B to -33; C to C-281; D to D-238; E
to E-3O and F to F-244 in the following manner: on the date and in the place aforementioned, said accused
pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc. Number Fever Promotion from
February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and announced and advertised in the media
that all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit
number will win the full amount of the prize printed on the crowns/caps which are marked with a seven-digit security
code as a measure against tampering or faking of crowns and each and every number has its own unique matching
security code, enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive advertisements to
become millionaires, and by virtue of such representations made by the accused, the said complainants bought
Pepsi softdrinks, but, the said accused after their TV announcement on May 25, 1992 that the winning number for
the next day was 349, in violation of their aforecited mechanics, refused as they still refuse to redeem/pay the said
Pepsi crowns and/or caps presented to them by the complainants, who, among others, were able to buy Pepsi
softdrinks with crowns/caps bearing number 349 with security codes L-2560-FQ and L-3560-FQ, despite repeated
demands made by the complainants, to their damage and prejudice to the extent of the amount of the prizes
respectively due them from their winning 349 crowns/caps, together with such other amounts they spent ingoing to
and from the Office of Pepsi to claim their prizes and such other amounts used in buying Pepsi softdrinks which the
complainants normally would not have done were it not for the false, fraudulent and deceitful posters of Pepsi Cola
Products, Inc.

CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the reconsideration of
the Joint Resolution[14] alleging therein that (a) there was neither fraud in the Number Fever Promotion nor deviation
from or modification of the promotional rules approved by the Department of Trade and industry (DTI), for from the
start of the promotion, it had always been clearly explained to the public that for one to be entitled to the cash prize
his crown must bear both the winning number and the correct security code as they appear in the DTI list; (b) the
complainants failed to allege, much less prove with prima facie evidence, the specific overt criminal acts or
ommissions purportedly committed by each of the petitioners; (c) the compromise agreement entered into by
PEPSI is not an admission of guilt; and (d) the evidence establishes that the promo was carried out with utmost
good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for Review [15] wherein, for the same grounds
adduced in the aforementioned motion for reconsideration, they prayed that the Joint Resolution be reversed and
the complaints dismissed. They further stated that the approval of the Joint Resolution by the City prosecutor was
not the result of a careful scrutiny and independent evaluation of the relevant facts and the applicable law but of the
grave threats, intimidation, and actual violence which the complainants had inflicted on him and his assistant
prosecutors.

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On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend Proceedings
and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had filed the aforesaid Petition for
Review.[16]
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. De Guia issued a 1st
Indorsement,[17] directing the City Prosecutor of Quezon City to inform the DOJ whether the petitioners have already
been arraigned, and if not, to move in court for the deferment of further proceedings in the case and to elevate to
the DOJ the entire records of the case, for the case is being treated as an exception pursuant to Section 4 of
Department Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of the RTC of Quezon City. [18]
In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for Issuance of
Warrants of Arrest.[19]
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in
Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings. [20] He stressed that the DOJ had taken
cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and
its related cases and asserted that the petition for review was an essential part of the petitioners right to a
preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued
an order advising the parties that his court would be guided by the doctrine laid down by the Supreme Court in the
case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the petition for
review undertaken by the accused.[21]
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to Defer
Arraignment wherein he also prayed that further proceedings be held in abeyance pending final disposition by the
Department of Justice.[22]
On 4 May 1993, Gavero filed an Amended Information, [23] accompanied by a corresponding motion [24] to admit
it. The amendments merely consist in the statement that the complainants therein were only among others who
were defrauded by the accused and that the damage or prejudice caused amounted to several billions of pesos,
representing the amounts due them from their winning 349 crowns/caps. The trial court admitted the amended
information on the same date.[25]
Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion to Defer
Arraignment,[26] and Objection and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the
Issuance of Warrants of Arrest.[27]
On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to Suspend Proceedings and
to Hold in Abeyance the Issuance of the Warrants of Arrest. [28]
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the petitioners Motion
to Suspend Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest and the public prosecutors
Motion to Defer Arraignment and (2) directing the issuance of the warrants of arrest after 21 June 1993 and setting
the arraignment on 28 June 1993.[29]Pertinent portions of the order read as follows:

In the Motion filed by the accused, it is alleged that on April 15,  1993, they filed a petition for review seeking the
reversal of the resolution of the City Prosecutor of Quezon City approving the filing of the case against the accused,
claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before the Department of Trade and Industry;
5. The evidence presented clearly showed no malicious intent on the part of the accused.

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Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is a pending petition for
review with the Department of Justice filed by the accused and the Office of the City Prosecutor was directed,
among other things, to cause for the deferment of further proceedings pending final disposition of said petition by
the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby DENIED.
This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may
have on the matter would undermine the independence and integrity of this Court. This Court is still capable of
administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated as follows:

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action
of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the determination of the Court.

WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be set on June 28, 1993,
at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and
prohibition with application for a temporary restraining order, [30] which was docketed as CA-G.R. SP No. 31226.
They contended therein that respondent Judge Asuncion had acted without or in excess of jurisdiction or with grave
abuse of discretion in issuing the aforementioned order of 17 May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY INVESTIGATION
BEFORE ORDERING THE ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY LIABLE FOR ESTAFA,
OTHER DECEITS, OR ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT THE SECRETARY
OF JUSTICES RESOLUTION OF PETITIONERS APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE
OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the  status quo.[31]  In
view thereof, respondent Judge Asuncion issued an order on 28 June 1993[32] postponing indefinitely the
arraignment of the petitioners which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners application for a writ of preliminary injunction,
granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the Branch Clerk of Court of the
RTC of Quezon City to elevate the original records of Criminal Case No. Q-93-43198 [33]
Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of the Joint
Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993, which fact belied the
petitioners claim that the respondent Judge had not the slightest basis at all for determining probable cause when
he ordered the issuance of warrants of arrest. It ruled that the Joint Resolution was sufficient in itself to have been
relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing
the corresponding warrants of arrest; and that the mere silence of the records or the absence of any express
declaration in the questioned order as to the basis of such finding does not give rise to an adverse inference, for the
respondent Judge enjoys in his favor the presumption of regularity in the performance of his official duty. The Court
of Appeals then issued a resolution[34] denying the application for a writ of preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider [35] the aforesaid resolution. The Court of Appeals
required the respondents therein to comment on the said motion. [36]
On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a
Manifestation[37] informing the court that the petitioners petition for review filed with the DOJ was dismissed in a
resolution dated 23 July 1993. A copy[38] of the resolution was attached to the Manifestation.
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On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss the
petition[39] on the ground that it has become moot and academic in view of the dismissal by the DOJ of the
petitioners petition to review the Joint Resolution. The dismissal by the DOJ is founded on the following exposition:

You questioned the said order of the RTC before the Court of Appeals and prayed for the issuance of a writ of
preliminary injunction to restrain the Trial Judge from issuing any warrant of arrest and from proceeding with the
arraignment of the accused. The appellate court in a resolution dated July 1, 1993, denied your petition.
In view of the said developments, it would be an exercise in futility to continue reviewing the instant cases for
any further action on the part of the Department would depend on the sound discretion of the Trial Court. The denial
by the said court of the motion to defer arraignment filed at our instance was clearly an exercise of its discretion.
With the issuance of the order dated May 17, 1993, the Trial Court was in effect sending a signal to this Department
that the determination of the case is within its exclusive jurisdiction and competence. The rule is that x x x once a
complaint or information is filed in Court, any disposition of the case as to 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. x x x (Crespo  vs.  Mogul, 151
SCRA 462).[40]
On 28 September 1993, the Court of Appeals promulgated a decision [41] dismissing the petition because it had
been mooted with the release by the Department of Justice of its decision x x x dismissing petitioners petition for
review by inerrantly upholding the criminal courts exclusive and unsupplantable authority to control the entire
course of the case brought against petitioners, reiterating with approval the dictum laid down in the Crespo case.
The petitioners filed a motion to reconsider the DOJs dismissal of the petition citing therein its resolutions in
other similar cases which were favorable to the petitioners and adverse to other 349 Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its 349 Committee, denied the motion and stated: The
instant petition is different from the other petitions resolved by this Department in similar cases from the provinces.
In the latter petitions, the complaints against herein respondents [sic] [42] were dismissed inasmuch as the
informations have not yet been filed or even if already filed in court, the proceedings have been suspended by the
courts to await the outcome of the appeal with this Department. [43]
The petitioners likewise filed a motion to reconsider [44] the aforesaid Court of Appeals decision, which the said
court denied in its resolution[45] of 9 February 1994. Hence, the instant petition.
The First Division of this Court denied due course to this petition in its resolution of 19 September 1994.[46]
On 7 October 1994, the petitioners filed a motion for the reconsideration [47] of the aforesaid resolution. Acting
thereon, the First Division required the respondents to comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration [48] and a motion to refer this case to the
Court en banc.[49]  In its resolution of 14 November 1994,[50] the First Division granted the latter motion and required
the respondents to comment on the supplemental motion for reconsideration
In the resolution of 24 November 1994, the Court en banc  accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent pleadings in
relation thereto, the Court en banc granted the motion for reconsideration; reconsidered and set aside the
resolution of 19 September 1994; and reinstated the petition. It then considered the case submitted for decision,
since the parties have exhaustively discussed the issues in their pleadings, the original records of Criminal Case
No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and both the petitioners and the
Office of the Solicitor General pray, in effect, that this Court resolve the issue of probable cause On the basis
thereof.
The pleadings of the parties suggest for this Courts resolution the following key issues:
1. Whether public respondent Judge Asuncion committed grave abuse of discretion in denying, on the
basis of Crespo vs. Mogul, the motions to suspend proceedings and hold in abeyance the issuance of
warrants of arrest and to defer arraignment until after the petition for review filed with the DOJ shall
have been resolved.

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2. Whether public respondent Judge Asuncion committed grave abuse of discretion in ordering the
issuance of warrants of arrest without examining the records of the preliminary investigation.
3. Whether the DOJ, through its 349 Committee, gravely abused its discretion in dismissing the petition
for review on the following bases: (a) the resolution of public respondent Court of Appeals denying the
application for a writ of preliminary injunction and (b) of public respondent Asuncions denial of the
abovementioned motions.
4. Whether public respondent Court of Appeals committed grave abuse of discretion (a) in denying the
motion for a writ of preliminary injunction solely on the ground that public respondent Asuncion had
already before him the Joint Resolution of the investigating prosecutor when he ordered the issuance
of the warrants of arrest, and (b) in ultimately dismissing the petition on the ground of mootness since
the DOJ has dismissed the petition for review.
5. Whether this Court may determine in this proceedings the existence of probable cause either for the
issuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.

I.
[51]
There is nothing in Crespo vs. Mogul   which bars the DOJ from taking cognizance of an appeal, by way of a
petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It
merely advised the DOJ to, as far as practicable, refrain from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has already been filed in Court. More specifically, it stated:

In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action
of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the determination of the Court. [52]
In Marcelo vs. Court of Appeals,[53] this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from
entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed
in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice
reverses an appealed resolution, is subject to the discretion of the court.
Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph of
Section 4, Rule 112 of the Rules of Court [54] which recognizes the authority of the Secretary of Justice to reverse the
resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from resolutions
in preliminary investigation. At the time the petitioners filed their petition for the review of the Joint Resolution of the
investigating prosecutor, the governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided
that only resolutions dismissing a criminal complaint may be appealed to the Secretary of Justice. Its Section 4,
[55]
 however, provided an exception, thus allowing, upon a showing of manifest error or grave abuse of discretion,
appeals from resolutions finding probable cause, provided that the accused has not been arraigned.
The DOJ gave due course to the petitioners petition for review as an exception pursuant to Section 4 of
Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223[56] which superseded Circular
No. 7. This Order, however, retained the provisions of Section 1 of the Circular on appealable cases and Section 4
on the non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the previous action of the DOJ
giving due course to the petitioners petition for review. But whether the DOJ would affirm or reverse the challenged

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Joint Resolution is still a matter of guesswork. Accordingly, it was premature for respondent Judge Asuncion to
deny the motions to suspend proceedings and to defer arraignment on the following grounds:

This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on
the matter would undermine the independence and integrity of this Court. This Court is still capable of administering
justice.
The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned
motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the
basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before
that time, the following pronouncement in Crespo  did not yet truly become relevant or applicable:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the
case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although
the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in
court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the
case before it. The determination of the case is within its exclusive jurisdiction and competence. 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. [57]
However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of
subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated
so in Martinez vs. Court of Appeals:[58]

Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in
cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the
accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the
prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being
sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its
supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of
the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished
the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice
which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling
in Crespo vs. Mogul.

II.
Section 2, Article III of the present Constitution provides that 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.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except
those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in
cases falling within their exclusive original jurisdiction; [59] in cases covered by the rule on summary procedure where
the accused fails to appear when required; [60] and in cases filed with them which are cognizable by the Regional
Trial Courts (RTCs);[61] and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and
the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do
so other than judges of MeTCs, MTCs and MCTCs.[62]
As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of
the complainant and the witnesses, in the form of searching questions and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of
justice.

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As to the second, this Court held in Soliven vs. Makasiar[63] that the judge is not required to personally
examine the complainant and the witnesses, but

[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and 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 fiscals 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.[64]
Sound policy supports this procedure, otherwise judges would be unduly laden with the preliminary examination
and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their
courts. It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now
prosecutor); they must evaluate the report and the supporting documents. In this sense, the aforementioned
requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on  30 June 1987 prescribing the
Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in
part as follows:
4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the
judge, following established doctrine and procedure, may either:
(a) Rely upon the fiscals certification of the existence of probable cause whether or not the case is
cognizable only by the Regional Trial Court and on the basis thereof, issue a warrant of arrest. x x
x
This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting
documents was further explained in People vs. Inting,[65] where this Court specified what the documents may
consist of, viz.,  the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents
behind the Prosecutors certification which are material in assisting the Judge to make  his determination of probable
cause. Thus:

We emphasize the important features of the constitutional mandate that x x x no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge x x x (Article III, Section 2,
Constitution).
First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make
the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By
itself, the Prosecutors certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the Prosecutors certification which are
material in assisting the Judge to make his determination.
In adverting to a statement in People vs. Delgado[66] that the judge may rely on the resolution of the
Commission on Elections (COMELEC) to file the information by the same token that it may rely on the certification
made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest, this
Court stressed in Lim vs. Felix[67] that

Reliance on the COMELEC resolution or the Prosecutors certification presupposes that the records of either the
COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or
resolution because the records of the investigation sustain the recommendation. The warrant issues not on the
strength of the certification standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions,
this Court found it necessary to restate the rule in greater detail and hopefully clearer terms. It then proceeded to do
so, thus:
We reiterate the ruling in Soliven vs. Makasiar  that the Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of

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the evidence. However, there should be a report and necessary documents supporting the Fiscals bare
certification. All of these should be before the Judge.
The extent of the Judges personal examination of the report and its annexes depends on the circumstances of
each case. We cannot determine beforehand how cursory or exhaustive the Judges examination should be. The
Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the
Constitution. It can be as brief as or detailed as the circumstances of each case require. To be sure, the Judge
must go beyond the Prosecutors certification and investigation report whenever, necessary. He should call for the
complainant and witnesses themselves to answer the courts probing questions when the circumstances of the case
so require.
This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the
issuance of the warrants of arrest against petitioners Lim, et al., solely on the basis of the prosecutors certification
in the informations that there existed probable cause without having before him any other basis for his personal
determination of the existence of a probable cause.
In Allado vs. Diokno,[68]  this Court also ruled that before issuing a warrant of arrest, the judge 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.
In the recent case of Webb vs. De Leon,[69]  this Court rejected the thesis of the petitioners of absence probable
cause and sustained the investigating panels and the respondent Judges findings of probable cause. After quoting
extensively from Soliven vs. Makasiar,[70] this Court explicitly pointed out:

Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that
respondent judges should have conducted searching examination of witnesses before issuing warrants of arrest
against them. They also reject petitioners contention that a judge must first issue an order of arrest before issuing a
warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements
of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter- affidavits of the
petitioners. Apparently, the painstaking recital and analysis of the parties evidence made in the DOJ Panel Report
satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress
that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the
guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable
cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting
minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the Probable cause
determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the
records of the case. (italics supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb  reject the proposition that the investigating
prosecutors certification in an information or his resolution which is made the basis for the filing of the information,
or both, would suffice in the judicial determination of probable cause for the issuance of a warrant of arrest. In
Webb, this Court assumed that since the respondent Judges had before them not only the 26-page resolution of the
investigating panel but also the affidavits of the prosecution witnesses and even the counter-affidavits  of the
respondents, they (judges) made personal evaluation of the evidence attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12
April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint
Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the
certification[71] of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic
notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof
were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge
Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of
arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He did not have
the records or evidence supporting the prosecutors finding of probable cause. And strangely enough, he made no
specific finding of probable cause; he merely directed the issuance of warrants of arrest after  June 21, 1993. It may,
however, be argued that the directive presupposes a finding of probable cause. But then compliance with a

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constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even
convincing logic.

III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the petitioners petition
for review pursuant to the exception provided for in Section 4 of Circular No. 7, and directed the Office of the City
Prosecutor of Quezon City to forward to the Department the records of the cases and to file in court a motion for the
deferment of the proceedings. At the time it issued the indorsement, the DOJ already knew that the information had
been filed in court, for which reason it directed the City Prosecutor to inform the Department whether the accused
have already been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully
aware that, pursuant to Crespo vs. Mogul,  a motion to dismiss a case filed by the prosecution either as a
consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review of the records of the
investigation is addressed to the trial court, which has the option to grant or to deny it. Also, it must have been still
fresh in its mind that a few months back it had dismissed for lack of probable cause other similar complaints of
holders of 349 Pepsi crowns.[72] Thus, its decision to give due course to the petition must have been prompted by
nothing less than an honest conviction that a review of the Joint Resolution was necessary in the highest interest of
justice in the light of the special circumstances of the case. That decision was permissible within the as far as
practicable criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a unilateral volte-
face, which was even unprovoked by a formal pleading to accomplish the same end, by dismissing the petition for
review. It dismissed the petition simply because it thought that a review of the Joint Resolution would be an
exercise in futility in that any further action on the part of the Department would depend on the sound discretion of
the trial court, and that the latters denial of the motion to defer arraignment filed at the instance of the DOJ was
clearly an exercise of that discretion or was, in effect, a signal to the Department that the determination of the case
is within the courts exclusive jurisdiction and competence. This infirmity becomes more pronounced because the
reason adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in
abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo.

IV.
If the only issue before the Court of Appeals were the denial of the petitioners Motion to Suspend Proceedings
and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutors Motion to Defer Arraignment,
which were both based on the pendency before the DOJ of the petition for the review of the Joint Resolution, the
dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the petition for review might have
been correct. However, the petition likewise involved the issue of whether respondent Judge Asuncion gravely
abused his discretion in ordering the issuance of warrants of arrest despite want of basis. The DOJs dismissal of
the petition for review did not render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners application for a writ of preliminary injunction to
restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of Appeals ,justified its action in this
wise:

The Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself
that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest. The mere silence
of the records or the absence of any express declaration in the questioned Order of May 17, 1993as to where the
respondent Judge based his finding of probable cause does not give rise to any adverse inference on his part. The
fact remains that the Joint Resolution was at respondent Judges disposal at the time he issued the Order for the
issuance of the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of regularity in
the performance of official actuations. And this presumption prevails until it is overcome by clear and convincing
evidence to the contrary. Every reasonable intendment will be made in support of the presumption, and in case of
doubt as to an officers act being lawful or unlawful it should be construed to be lawful. (31 C.J.S., 808-810. See
also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482; People vs.  Cortez, 21 SCRA 1228; Government of the
P.I. vs.  Galarosa, 36 Phil. 338).

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We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that respondent
Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced that probable cause exists
for the issuance of the warrants of arrest against the petitioners. Nothing in the records provides reasonable basis
for these assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which
was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found
probable cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of
warrants of arrest only  after June 21, 1993. If he did read the Joint Resolution and, in so reading, found probable
cause, there was absolutely no reason at all to delay for more than one month the issuance of warrants of arrest.
The most probable explanation for such delay could be that the respondent Judge had actually wanted to wait for a
little while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever doubts
may have lingered on the issue of probable cause was dissolved when no less than the Court of Appeals sustained
the finding of probable cause made by the respondent Judge after an evaluation of the Joint Resolution. We are not
persuaded with that opinion. It is anchored on erroneous premises. In its 1 July 1993 resolution, the Court of
Appeals does not at all state that it either sustained respondent Judge Asuncions finding of probable cause, or
found by itself probable cause. As discussed above, it merely presumed that Judge Asuncion might have read the
Joint Resolution and found probable cause from a reading thereof. Then too, that statement in the dissenting
opinion erroneously assumes that the Joint Resolution can validly serve as sufficient basis for determining probable
cause. As stated above, it is not.

V.
In criminal prosecutions, the determination of probable cause may either be an executive or a judicial
prerogative. In People vs. Inting,[73] this Court aptly stated:

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable
cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the
same proceeding, there should be no confusion about the objectives. The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary investigation proper - whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial- is the function of the Prosecutor.

xxx xxx xxx

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in
nature. It is part of the prosecutions job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge x x x.
Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is
confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was
done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is
consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary
or final. There are, however, exceptions to this rule. Among the exceptions are enumerated in Brocka vs.
Enrile[74]  as follows:
a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et
al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions
(Dimayuga, et al. vs.  Fernandez, 43 Phil. 304; Hernandez vs.  Albano, supra; Fortun vs.  Labang, et
al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);

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d. When the acts of the officer are without or in excess of authority (Planas vs.  Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young  vs.  Rafferty, 33
Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs.  People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs.  City Judge, L-25795,  October 29,
1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs.  Ocampo, CA-G.R. No. 4760,
March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto  vs.  Castelo, 18
L.J.,  [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al.
vs.  City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. When there is clearly no  prima facie  case against the accused and a motion to quash on that ground
has been denied (Salonga vs.  Pao, et al., L-59524, February 18, 1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest
of petitioners (Rodriguez vs.  Castelo, L-6374, August 1, 1953). (cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by
examining the records of the preliminary investigation, as it did in Salonga vs. Pao,[75] Allado, and Webb.
There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-
43198 and several thousands more in different parts of the country who are similarly situated as the former for
being holders of 349 Pepsi crowns, any affirmative holding of probable cause in the said case may cause or
provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the
country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts
and to huge expenditures for premiums on bailbonds and for travels from one court to another throughout the
length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much
of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such a
frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of
actions - a situation already long conceded by this Court to be an exception to the general rule that criminal
prosecutions may not be restrained or stayed by injunction. [76]
We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the issuance
of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact,
find that probable cause exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting, Lim,
Allado, and even Webb.  Moreover, the records of the preliminary investigation in Criminal Case No. Q-93-43198
are not with this Court. They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in
compliance with the latters 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to
perform their duty.
WHEREFORE, the instant petition is granted and the following are hereby SET ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent Court of Appeals in
CA-G.R. SP No. 31226;
(b) The Resolution of the 349 Committee of the Department of Justice of 23 July 1993 dismissing the
petitioners petition for review and of 3 February 1994 denying the motion to reconsider the dismissal;
and
(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal Case No. Q-93-
43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice of this
decision, the petitioners petition for the review of the Joint Resolution of Investigating Prosecutor Ramon Gerona
and thereafter to file the appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent Judge
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Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix,
Allado vs. Diokno,  and Webb vs. De Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further proceeding with
Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.

9. Ledesma v. Court of Appeals

THIRD DIVISION

[G.R. No. 113216. September 5, 1997]

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his
capacity as Presiding Judge of RTC, Quezon City, respondents.

DECISION
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a
resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of
the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution
but is required to evaluate it before proceeding further with the trial. While the secretarys ruling is persuasive, it is
not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it
refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere
pretext of having already acquired jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review on certiorari of the Decision[1] of the
Court of Appeals,[2] promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order
of the Regional Trial Court of Quezon City denying the prosecutions withdrawal of a criminal information against
petitioner.

The Antecedent Facts

From the pleadings submitted in this case, the undisputed facts are as follows:

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma,
petitioner herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her
counter-affidavit to the complaint.

Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an Information
for libel against petitioner with the Regional Trial Court of Quezon City, Branch 104. [3] The Information filed by
Assistant City Prosecutor Augustine A. Vestil reads: [4]

That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting
with malice, did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I.
Cabral, Director of Philippine Heart Center, East Avenue, this city, and furnished the same to other officers of the
said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which
states in part, to wit:

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27June 1991

Dr. Esperanza I. Cabral

Director

Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant,
Philippine Heart Center, from January 31, 1989 to January 31, 1991.

Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon,

Staff Consultant

Dear Dr. Cabral,

This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since
January 31, 1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year
1990 alone. Records in the Nuclear Medicine Section will show that from January 1989 to January 1991, a total of
2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted approximately a total of
1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively.

Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly
representing 20% of the total monthly professional fees. The rest were divided equally between Dr. Monzon and Dr.
Torres. There was never any agreement between us three consultants that this should be the arrangement and I
am certain that this was not with your approval. The burden of unfairness would have been lesser if there was an
equal distribution of labor and the schedule of duties were strictly followed. As it was, the schedule of duties
submitted monthly to the office of the Asst. Director for Medical Services was simply a dummy to comply with
administrative requirements rather than a guideline for strict compliance. Both consultants have complete daily time
records even if they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically
during the week while I was left with everything from training the residents and supervising the Techs to processing
and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres.

In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am
calling your attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that
your sense of professionalism will put a stop to this corruption.

I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this
point, let me stress that since professional fees vary according to the type of procedure done and since there was
no equity of labor between us I am not settling for an equal percentage share. I demand that I be indemnified of all
professional fees due me on a case to case basis.

Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let
me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and
are clearly violating the code of ethics of the medical profession and the Philippine Civil Service Rules and
Regulations related to graft and corruption.

Thank you.

and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely
false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to
public ridicule, thereby casting dishonor, discredit and contempt upon the person of the said offended party, to his
damage and prejudice.

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A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the
Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move
for deferment of further proceedings and to elevate the entire records of the case. [5] Accordingly, a Motion to Defer
Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.[6] On
September 9, 1992, the trial court granted the motion and deferred petitioners arraignment until the final termination
of the petition for review.[7]
Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to
Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial. [8]
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and
scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon. [9]
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City
investigating prosecutor. Pertinent portions of Drilons ruling read:[10]

From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the
Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma
was getting from complainants. Since complainants and respondent are government employees, and the subject
letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest and
in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil.
131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922,
ruled that A communication made in good faith upon any subject matter in which the party making the
communication has an interest or concerning which he has a duty is privileged... although it contains incriminatory
or derogatory matter which, without the privilege, would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous
disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper
higher authority who is the Director of PHCA.

The same interpretation should be accorded the civil and administrative complaints which respondent filed against
complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice
she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the
Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against
complainants.

Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them
to public and malicious imputation of a vice or omission. It is beyond the ordinary course of human conduct for
complainants to start feeling the effects of the alleged libelous letter - that of experiencing sleepless nights,
wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the
communication in question.

The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the
first place, the instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are
under review. Further, the record shows that the court has issued an order suspending the proceedings pending
the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes that the
Secretary of Justice has the power and authority to review the resolutions of prosecutors who are under his control
and supervision.

In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the
Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw
Information dated February 17,1993,[11] attaching thereto the resolution of Secretary Drilon. The trial judge denied
this motion in his Order dated February 22, 1993, as follows: [12]

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The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial
prosecutor of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by
the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462.
Petitioners motion for reconsideration[13] was denied by the trial judge in the Order dated March 5, 1993, as
follows:[14]

Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the
Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby denied.
Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated
March 31, 1993, this Court referred the case to the Court of Appeals for proper determination and disposition
pursuant to Section 9, paragraph 1 of B.P. 129. [15]
Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to overturn the
doctrine laid down in Crespo vs. Mogul --  once a complaint or information has been filed in court, any disposition of
the case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound discretion of the trial court. [16]
Hence, this recourse to this Court.

The Issues
For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her
counsel merely repeated the alleged errors of the trial court: [17]

I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the
Crespo vs. Mogul (151 SCRA 462) decision. It is respectfully submitted that said case is not applicable because:

1. It infringes on the constitutional separation of powers between the executive and judicial branches of the
government;

2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution;

3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights;

4. It goes against the principle of non-delegation of powers;

5. It sets aside or disregards substantive and procedural rules;

6. It deprives a person of his constitutional right to procedural due process;

7. Its application may constitute or lead to denial of equal protection of laws;

8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate
official;

9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals;

10. It does not subserve the purposes of a preliminary investigation because -

(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal
recommends no bail for the accused;

(10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses
attendant to an unnecessary trial;
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(10.c) It contributes to the clogging of judicial dockets; and

11. It has no statutory or procedural basis or precedent.

II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -

1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he
denied the Motion to Withdraw Information since he had already deferred to, if not recognized, the authority of the
Secretary of Justice; and

2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion committed
grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on said case in denying the
Motion to Withdraw Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial
courts denial of the prosecutions Motion to Withdraw Information?

The Courts Ruling

The petition is impressed with merit. We answer the above question in the affirmative.

Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a procedural matter.  Prior to
the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals
from the Court of Appeals to the Supreme Court, provided:

SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of errors made
in the court below x x x.
A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the
Court of Appeals, not of the trial court. For failure to follow this Rule, the petition could have been dismissed by this
Court motu proprio, considering that under Section 4 of the same Rule, review is not a matter of right but of sound
discretion.
We take this occasion to stress the need for precision and clarity in the assignment of errors.  Review under
this rule is unlike an appeal in a criminal case where the death penalty, reclusin perpetua or life imprisonment is
imposed and where the whole case is opened for review. Under Rule 45, only the issues raised therein by the
petitioner will be passed upon by the Court, such that an erroneous specification of the issues may cause the
dismissal of the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the
Court of Appeals and to the Supreme Court, as follows:

4. Erroneous Appeals. x x x x

e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order
promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of
fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to
follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in
compliance may well be fatal to his clients cause.

FOR STRICT COMPLIANCE.

Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook
petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996, with a warning that

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henceforth petitions which fail to specify an assignment of errors of the proper lower court may be denied due
course motu proprio by this Court.

Determination of Probable Cause Is an Executive Function

The determination of probable cause during a preliminary investigation is judicially recognized as an executive
function and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent
from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial,
until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding by a
competent officer designated by law for that purpose. Secondarily, such summary proceeding also protects the
state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in holding trials
arising from false, frivolous or groundless charges.[18]
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties evidence is not
required, but only such as may engender a well-grounded belief that an offense has been committed and that the
accused is probably guilty thereof. [19] By reason of the abbreviated nature of preliminary investigations, a dismissal
of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double
jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable
cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper in this wise:
[20]

xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender
should be held for trial or released. xxx The determination of probable cause for the warrant of arrest is made by
the Judge. The preliminary investigation proper--whether xxx there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether xxx he should be subjected to the expense, rigors
and embarrassment of trial--is the function of the prosecutor.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in
nature. It is part of the prosecutors job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed
before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of
Appeals stressed that the determination of the existence of probable cause properly pertains to the public
prosecutor in the established scheme of things, and that the proceedings therein are essentially preliminary,
prefatory and cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the persons
charged with a felony or a crime.[21]
In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the public prosecutor controls and
directs the prosecution of criminal offenses thus:

It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be
prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound
discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by
the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the
accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control
of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the
complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the
duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty
of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when

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after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima
facie case.
In the same case, the Court added that where there is a clash of views between a judge who did not
investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail: [23]

x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is not
prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on
an information, if he finds that the evidence relied upon by him is insufficient for conviction.Neither has the Court
any power to order the fiscal to prosecute or file an information within a certain period of time, since this would
interfere with the fiscals discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of
the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The
fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either
that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views
between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or
the defendant, those of the fiscals should normally prevail. x x x x.

Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors

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 orunits; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read:

Section 3. x x x x

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State
Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the
interest of public service.
xxx xxx xxx

Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority,
duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood
as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof,
or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service.
Supervision and control of a department head over his subordinates have been defined in administrative law
as follows:[24]

In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.

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Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds
basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence
committed in the initial steps of an administrative activity or by an administrative agency should be corrected by
higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are
exhausted may judicial recourse be allowed.

Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in  Crespo

In Marcelo vs. Court of Appeals, [25] the Court clarified that Crespo[26]  did not foreclose the power or authority of
the secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized
in Crespo that the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the
approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of
justice.
The justice secretarys power of review may still be availed of despite the filing of an information in court. In his
discretion, the secretary may affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No.
5180, as amended,[27] specifically in Section 1 (d):

(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is,
upon review, reversed by the Secretary of Justice, the latter may, where he finds that no prima facie case exists,
authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for
the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against
the respondent, based on the same sworn statements or evidence submitted without the necessity of conducting
another preliminary investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing
appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal
complaint. However, Section 4 provides an exception: appeals from resolutions finding probable cause upon a
showing of manifest error or grave abuse of discretion are allowed, provided the accused has not been
arraigned. In the present case, petitioners appeal to the secretary of justice was given due course on August 26,
1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of
appealable cases remained unchanged:

SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.

Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged
does not exceed prisin correccional,  regardless of the imposable fine, shall be made to the Regional State
Prosecutors who shall resolve the appeals with finality, pursuant to Department Order No. 318 dated August 28,
1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45
dated February 2, 1993. Such appeals shall also be governed by these rules.

SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of
manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant (is)
arraigned during the pendency of the appeal, x x x appeal shall be dismissed motu proprio by the Secretary of
Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of
the information in court.
Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice
is recognized also by Section 4 of Rule 112 of the Rules of Court:
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SEC. 4. Duty of investigating fiscal.--x x x x

xxx xxx xxx

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or
chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting
another preliminary investigation or to dismiss or move for dismissal of the complaint or information.
This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision
and control over the prosecuting arm of the government, not on a substantial right on the part of the accused as
claimed by petitioner.

Appeal Did Not Divest the Trial Court of Jurisdiction

Where the secretary of justice exercises his power of review only after an information has been filed, trial
courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or
suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of
justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to
withdraw the information or to dismiss the case.

Judicial Review of the Resolution of the Secretary of Justice

Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies
involving rights which are legally demandable and enforceable. Such power includes the determination of whether
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.[28] Under this definition, a court is without power to directly decide matters over
which full discretionary authority has been delegated to the legislative or executive branch of the government.  It is
not empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the
question of whether such exercise has been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of
their functions. In the words of Justice Laurel in Angara vs. Electoral Commission:[29]

x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument sources and guarantees to them. This is in truth all that is involved in
what is termed judicial supremacy which properly is the power of the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the
decisions of the government prosecutors under him. In Crespo, the secretary was merely advised to restrict such
review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power,
does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of the information
upon the resolution of the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of
Appeals[30]  and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its
own evaluation of the merits of the case, because granting the motion to dismiss or to withdraw the information is
equivalent to effecting a disposition of the case itself.

The Marcelo and Martinez Cases Are Consistent

In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a final resolution
of a motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a
motion to withdraw an information, a trial court nonetheless should make its own study and evaluation of said
motion and not rely merely on the awaited action of the secretary. The trial court has the option to grant or deny the
motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether
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after a reinvestigation or upon instructions of the secretary who reviewed the records of the investigation; provided
that such grant or denial is made from its own assessment and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals,[32]  this Court overruled the grant of the motion to dismiss filed by the
prosecuting fiscal upon the recommendation of the secretary of justice because such grant was based upon
considerations other than the judges own assessment of the matter. Relying solely on the conclusion of the
prosecution to the effect that there was no sufficient evidence against the accused to sustain the allegation in the
information, the trial judge did not perform his function of making an independent evaluation or assessment of the
merits of the case.
Despite the pronouncement in Marcelo  that a final resolution of the appeal to the Department of Justice is
necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or information is filed in court,
any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court.  Trial
judges are thus required to make their own assessment of whether the secretary of justice committed grave abuse
of discretion in granting or denying the appeal, separately and independently of the prosecutions or the secretarys
evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists.  They
should embody such assessment in their written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of
the criminal action upon the favorable recommendation of the Review Committee, Office of the City Prosecutor,
was precipitate in view of the pendency of private complainants appeal to the secretary of justice.  In effect, the
secretarys opinion was totally disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal
action was an erroneous exercise of judicial discretion as the trial court relied hook, line and sinker on the
resolution of the secretary, without making its own independent determination of the merits of the said resolution.

No Grave Abuse of Discretion in theResolution of the Secretary of Justice

In the light of recent holdings in Marcelo  and Martinez; and considering that the issue of the correctness of the
justice secretarys resolution has been amply threshed out in petitioners letter, the information, the resolution of the
secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration all
of which were submitted to the court -- the trial judge committed grave abuse of discretion when it denied the
motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial courts
order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s)
presented in the motion to dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding
the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to
proceed with the trial without stating his reasons for disregarding the secretarys recommendation.
Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground
to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that
there was no probable cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to
the trial judge for his or her independent assessment of the motion to withdraw the information. However, in order
not to delay the disposition of this case and to afford the parties complete relief, we have decided to make directly
the independent assessment the trial court should have done. The petitioner has attached as annexes to the
present petition for review the information, which contains a complete and faithful reproduction of the subject letter,
the resolution of the secretary of justice, the prosecutions motion for reconsideration of the trial courts Order of
February 22, 1993, and even the private complainants opposition to said motion. The records below have been
reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and
will only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed
the finding of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the
complaint was merely a countercharge.
In every case for libel, the following requisites must concur:

(a) it must be defamatory;

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(b) it must be malicious;

(c) it must be given publicity; and

(d) the victim must be identifiable.

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a
crime has been committed and that the accused probably committed it. A cursory reading of the information
immediately demonstrates a failure on the part of the complainant to establish the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for
making it is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and
speaks not in response to duty but merely to injure the reputation of the person who claims to have been
defamed. [33] In this case however, petitioners letter was written to seek redress of proper grievance against the
inaccurate distribution and payment of professional fees and against unfair treatment in the Nuclear Medicine
Department of the Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of the
Revised Penal Code which provides:

ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true,
if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty;
and
xxx xxx xxx
The rule on privileged communication is that a communication made in good faith on any subject matter in
which the communicator has an interest, or concerning which he has a duty, is privileged if made to a person
having a corresponding interest or duty, although it contains incriminatory matter which, without the privilege, would
be libelous and actionable. Petitioners letter was a private communication made in the performance of a moral duty
on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her
grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no
malice when justifiable motive exists; and in the absence of malice, there is no libel. We note that the information
itself failed to allege the existence of malice.
Thus, we agree with the ruling of the secretary of justice: [34]

x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia
and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government
employees, and the subject letter is a complaint x x x on a subject matter in which respondent has an interest and
in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil.
131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922,
ruled that a communication made in good faith upon any subject matter in which the party making the
communication has an interest or concerning which he has a duty is privileged although it contains incriminatory or
derogatory matter which, without the privilege, would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous
disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper
higher authority xxx.

The same interpretation should be accorded the civil and administrative complaints which respondent filed against
complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice
she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to
the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases
against complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a
communication to another officer or to a body of officers, who have a duty to perform with respect to the subject
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matter of the communication, such communication does not amount to publication within the meaning of the law on
defamation.[35] Publication in libel means making the defamatory matter, after it has been written, known to
someone other than the person to whom it has been written. [36] The reason for such rule is that a communication of
the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A
mans reputation is not the good opinion he has of himself, but the estimation in which others hold him. [37] In this
case, petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its
contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph 1 of Article
354 of the Penal Code.
Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June
27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant
Torres a leverage against petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof
was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his
grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in
the resolution of the secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo
vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where
this Court required trial courts to make an independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the
Information dated February 17, 1993 filed before the trial court is GRANTED.No costs.
SO ORDERED.

10. Fabian v. Desierto

EN BANC

[G.R. No. 129742. September 16, 1998]

TERESITA G. FABIAN petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as ombudsman; HON.
JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V.
AGUSTIN respondents.

DECISION
REGALADO, J:
Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order" issued by
public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the motion for
reconsideration of and absolved private respondents from administrative charges for inter alia grave misconduct
committed by him as then Assistant Regional Director, Region IV-A, Department of Public Works and Highways
(DPWH).
I
It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G. Fabian
was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which
was engaged in the construction business. Private respondents Nestor V. Agustin was the incumbent District
Engineering District (FMED) when he allegedly committed the offenses for which he was administratively charged
in the Office in the office of the Ombudsman.
Promat participated in the bidding for government construction project including those under the FMED, and
private respondent, reportedly taking advantage of his official position, inveigled petitioner into an amorous
relationship. Their affair lasted for some time, in the course of which private respondents gifted PROMAT with
public works contracts and interceded for it in problems concerning the same in his office.

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Later, misunderstanding and unpleasant incidents developed between the parties and when petitioner tried to
terminate their relationship, private respondent refused and resisted her attempts to do so to the extent of
employing acts of harassment, intimidation and threats. She eventually filed the aforementioned administrative
case against him in a letter-complaint dated July 24, 1995.
The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act No.
6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service Decree), with an
ancillary prayer for his preventive suspension. For purposes of this case, the charges referred to may be subsumed
under the category of oppression, misconduct, and disgraceful or immoral conduct.
On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private respondents
guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the
law. His resolution bore the approval of Director Napoleon Baldrias and Assistant Ombudsman Abelardo
Aportadera of their office.
Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution with
modifications, by finding private respondent guilty of misconduct and meting out the penalty of suspension without
pay for one year. After private respondent moved for reconsideration, respondent Ombudsman discovered that the
former's new counsel had been his "classmate and close associate" hence he inhibited himself. The case was
transferred to respondent Deputy Ombudsman Jesus F. Guerrero who, in the now challenged Joint Order of June
18, 1997, set aside the February 26, 1997 Order of respondent Ombudsman and exonerated private respondents
from the administrative charges.
II
In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989)
[1]
 pertinently provides that -

In all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petitionfor certiorari  within ten (10) days from receipt of the written notice
of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the
Rules of Court. (Emphasis supplied)
However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of
the office of the Ombudsman),[2] when a respondent is absolved of the charges in an
administrative proceeding decision of the ombudsman is final and unappealable. She accordingly submits that
the office of the ombudsman has no authority under the law to restrict, in the manner provided in its aforesaid
Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of  review of this Court. Because
of the aforecited provision in those Rules of Procedure, she claims that she found it "necessary to take an
alternative recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the availability of
appeals under Rule 45 of the Rules of Court.
Respondents filed their respective comments and rejoined that the Office of the Ombudsman is empowered by
the Constitution and the law to promulgate its own rules of procedure. Section 13(8), Article XI of the 1987
Constitution provides, among others, that the Office of the Ombudsman can "(p)romulgate its rules of procedure
and exercise such other powers or perform such functions or duties as may be provided by law."
Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions:

Sec. 14. Restrictions. - x x x No court shall hear any appeal or application for remedy against the decision or
findings of the Ombudsman except the Supreme Court on pure question on law.
xxx

Sec. 18. Rules of Procedure. - (1) The Office of the Ombudsman shall promulgate its own rules of procedure for the
effective exercise or performance of its powers, functions, and duties.
xxx

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Sec. 23. Formal Investigation. - (1) Administrative investigations by the Office of the Ombudsman shall be in
accordance with its rules of procedure and consistent with the due process. x x x
xxx

Sec. 27. Effectivity and  Finality of Decisions. - All provisionary orders at the Office of the Ombudsman are
immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed
within five (5) days after receipt of written notice shall be entertained only on any of the following grounds:
xxx

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any
order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one
month salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice
of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the
Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may
require.
Respondents consequently contend that, on the foregoing constitutional and statutory authority, petitioner
cannot assail the validity of the rules of procedure formulated by the Office of the Ombudsman governing the
conduct of proceeding before it, including those with respect to the availabity or non-avalability of appeal in
administrative cases. Such as Section 7, Rule III of Administrative Order No.07.
Respondents also question the propriety of petitioner's proposition that, although she definitely prefaced her
petition by categorizing the same as "an appeal by certiorari under Rule 45 of the Rules of Court," she makes the
aforequoted ambivalent statement which in effect asks that, should the remedy under Rule 45 be unavailable, her
petition be treated in the alternative as an original action for certiorariunder Rule 65. The parties thereafter engage
in a discussion of the differences between a petition for review on certiorari under Rule 45 and a special civil action
of certiorari under Rule 65.
Ultimately, they also attempt to review and rationalize the decision of this Court applying Section 27 of
Republic Act No. 6770 vis--vis Section 7, Rule III of Administrative Order No. 07. As correctly pointed out by public
respondents, Ocampo IV vs. Ombudsman, et al.[3] and Young vs. Office of the Ombudsman, et al. [4] were original
actions for certiorari under Rule 65. Yabut vs. Office of the Ombudsman, et al.[5] was commenced by a petition for
review on certiorari under Rule 45. Then came Cruz, Jr. vs. People, et al.,[6] Olivas vs. Office of the Ombudsman, et
al., [7] Olivarez vs. Sandiganbayan, et al., [8] and Jao, et al. vs. Vasquez, [9] which were for certiorari, prohibition and/or
mandamus under Rule 65. Alba vs. Nitorreda, et al.[10] was initiated by a pleading unlikely denominated as an
"Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary remedies, and ultimately followed by
Constantino vs. Hon. Ombudsman Aniano Desierto, et al. [11] which was a special civil action for certiorari.
Considering, however the view that this Court now takes of the case at bar and the issues therein which will
shortly be explained, it refrains from preemptively resolving the controverted points raised by the parties on the
nature and propriety of application of the writ of certiorari when used as a mode of appeal or as the basis of a
special original action, and whether or not they may be resorted to concurrently or alternatively, obvious though the
answers thereto appear to be. Besides, some seemingly obiter statements in Yabuts and Alba could bear
reexamination and clarification. Hence, we will merely observe and lay down the rule at this juncture that Section 27
of Republic Act No. 6770 is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision
in an administrative diciplinary action. It cannot be taken into account where an original action for certiorari under
Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action.
III

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After respondents' separate comments had been filed, the Court was intrigued by the fact, which does appear
to have been seriously considered before, that the administrative liability of a public official could fall under the
jurisdiction of both the Civil Service Commission and the Office of the Ombudsman. Thus, the offenses imputed to
herein private respondent were based on both Section 19 of Republic Act. No. 6770 and Section 36 of Presidential
Decree No. 807. Yet, pursuant to the amendment of section 9, Batas Pambansa Blg. 129 by Republic Act No.
7902, all adjudications by Civil Service Commission in administrative disciplinary cases were made appealable to
the Court of Appeals effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this
Court.
It could thus be possible that in the same administrative case involving two respondents, the proceedings
against one could eventually have been elevated to the Court of Appeals, while the other may have found its way to
the Ombudsman from which it is sought to be brought to this Court.  Yet systematic and efficient case management
would dictate the consolidation of those cases in the Court of Appeals, both for expediency and to avoid possible
conflicting decisions.
Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o law shall
be passed increasing the appellate indiction of the Supreme Court as provided in this Constitution without its advice
and consent," and that Republic Act No. 6770, with its challenged Section 27, took effect on November 17, 1989,
obviously in spite of that constitutional grounds must be raised by a party to the case, neither of whom did so in this
case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended fort the observance of the judiciary and other departments of the government
and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its
commands or countenance evasions thereof. When it is clear that a statute trangresses the authority vested in a
legislative body, it is the duty of the courts to declare that the constitution, and not the statute, governs in a case
before them for judgement.[12]
Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings,
[13]
 the rule has been recognized to admit of certain exceptions. It does not preclude a court from inquiring into its
own jurisdiction or compel it to enter a judgement that it lacks jurisdiction to enter.  If a statute on which a court's
jurisdiction in a proceeding depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it
may determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality of
the statute.[14]
Constitutional question, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless
the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time
or on the court's own motion. [15] The Court ex mero motu may take cognizance of lack of jurisdiction at any point in
the case where the fact is developed. [16] The court has a clearly recognized right to determine its own jurisdiction in
any proceeding.[17]
The foregoing authorities notwithstanding, the Court believed that the parties hereto should be further heard on
this constitutional question. Correspondingly, the following resolution was issued on May 14, 1998, the material
parts stating as follows:

The Court observes that the present petition, from the very allegations thereof, is "an appeal by certiorari under
Rule 45 of the Rules of Court from the 'Joint Order (Re: Motion for Reconsideration)' issued in OMB-Adm. Case No.
0-95-0411, entitled 'Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-A, EDSA,
Quezon City,' which absolved the latter from the administrative charges for grave misconduct, among other."

It is further averred therein that the present appeal to this Court is allowed under Section 27 of the Ombudsman Act
of 1987 (R.A. No. 6770) and, pursuant thereto, the Office of the Ombudsman issued its Rules of Procedure, Section
7 whereof is assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was enacted on
November 17, 1989, with Section 27 thereof pertinently providing that all administrative diciplinary cases, orders,
directives or decisions of the Office of the Ombudsman may be appealed to this Court in accordance with Rule 45
of the Rules of Court.

The Court notes, however, that neither the petition nor the two comments thereon took into account or discussed
the validity of the aforestated Section 27 of R.A. No. 8770 in light of the provisions of Section 30, Article VI of the

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1987 Constitution that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advise and consent."

The Court also invites the attention of the parties to its relevant ruling in First Lepanto Ceramics, Inc. vs. The Court
of Appeals , et al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the provisions of its former Circular No.
1-95,as now substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil Procedure.

In view of the fact that the appellate jurisdiction of the Court is invoked and involved and in this case, and the
foregoing legal consideration appear to impugn the constitutionality and validity of the grant of said appellate
jurisdiction to it, the Court deems it necessary that the parties be heard thereon and the issue be first resolved
before conducting further proceedings in this appellate review.

ACCORDINGLY, the Court Resolved to require the parties to Submit their position and arguments on the matter
subject of this resolution by filing their corresponding pleadings within ten (10) days from notice hereof.
IV
The records do not show that the Office of the Solicitor General has complied with such requirement, hence
the Court dispenses with any submission it should have presented. On the other hand, petitioner espouses the
theory that the provision in Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this
Court of the aforementioned adjudications of the Ombudsman is not violative of Section 30, Article VI of the
Constitution. She claims that what is proscribed is the passage of law "increasing" the appellate jurisdiction of this
Court "as provided in this Constitution," and such appellate jurisdiction includes "all cases in which only an error or
question of law is involved." Since Section 5(2)(e), Article VIII of the Constitution authorizes this Court to review,
revise, reverse, modify, or affirm on appeal or certiorari the aforesaid final judgement or orders "as the law or the
Rules of Court may provide," said Section 27 does not increase this Court may provide," said section 27  does not
increase this Court's appellate jurisdiction since, by providing that the mode of appeal shall be by petition
for certiorari under Rule 45, then what may be raised therein are only questions of law of which this Court already
has of which this Court already has jurisdiction.
We are not impressed by this discourse. It overlooks the fact that by jurisprudential developments over the
years, this Court has allowed appeals by certiorari under Rule 45 in a substantial number of cases and instances
even if questions of fact are directly involved and have to be resolved by the appellate court. [18] Also, the very
provision cited by petitioner specifies that the appellate jurisdiction of this Court contemplated therein is to be
exercised over "final judgements and orders of lower courts," that is, the courts composing the integrated judicial
system. It does not include the quasi-judicial bodies or agencies, hence whenever the legislature intends that the
decisions or resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of
Appeals, a specific provision to that effect is included in the law creating that quasi-judicial agency and, for that
matter, any special statutory court. No such provision on appellate procedure is required for the regular courts of
the integrated judicial system because they are what are referred to and already provided for in Section 5, Article
VIII of the Constitution.
Apropos to the foregoing, and as correctly observed by private respondent, the revised Rules of Civil
Procedure[19] preclude appeals from quasi-judicial agencies to the Supreme Court via a petition for review
on certiorari under Rule 45. In the 1997 Rules of Civil Procedure, Section 1 Rule 45, on "Appeal by Certiorari to the
Supreme Court," explicitly states:

SECTION 1 . Filing of petition with Supreme Court. - A person desiring to appeal by certiorari from a judgement or
final order or Resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other court
whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition
shall raise only question of law which must be distinctly set forth. (Italics ours).
This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court of
Appeals, and had to be adopted in statutes creating and providing for appeals from certain administrative or quasi-
judicial agencies, whenever the purpose was to restrict the scope of the appeal to questions of law.  That intended
limitation on appellate review, as we have just discussed, was not fully subserved by recourse to the former Rule 45
but, then, at that time there was no uniform rule on appeals from quasi-judicial agencies.

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Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only from
judgments and final orders of the courts  enumerated in Section 1 thereof. Appeals from judgments and final orders
of quasi-judicial agencies[20] are now required to be brought to the Court of Appeals on a verified petition for review,
under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a
uniform rule of appellate procedure for quasi-judicial agencies .[21]
It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial agencies,
but not to the Office of the Ombudsman which is a "high constitutional body." We see no reason for this distinction
for, if hierarchical rank should be a criterion, that proposition thereby disregards the fact that Rule 43 even includes
the Office of the President and the Civil Service Commission, although the latter is even an independent
constitutional commission, unlike the Office of the Ombudsman which is a constitutionally-mandated but statutorily
created body.
Regarding the misgiving that the review of the decision of the Office of the Ombudsman by the Court of
Appeals would cover questions of law, of fact or of both, we do not perceive that as an objectionable feature.  After
all, factual controversies are usually involved in administrative disciplinary actions, just like those coming from the
Civil Service, Commission, and the Court of Appeals as a trier of fact is better prepared than this Court to resolve
the same. On the other hand, we cannot have this situation covered by Rule 45 since it now applies only to appeals
from the regular courts. Neither can we place it under Rule 65 since the review therein is limited to jurisdictional
questions.*
The submission that because this Court has taken cognizance of cases involving Section 27 of Republic Act
No. 6770, that fact may be viewed as "acquiescence" or "acceptance" by it of the appellate jurisdiction
contemplated in said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not of acquiescence as a
matter of fact but an issue of conferment as a matter of law. Besides, we have already discussed the cases referred
to, including the inaccuracies of some statements therein, and we have pointed out the instances when Rule 45 is
involved, hence covered by Section 27 of Republic Act No. 6770 now under discussion, and when that provision
would not apply if it is a judicial review under Rule 65.
Private respondent invokes the rule that courts generally avoid having to decide a constitutional question,
especially when the case can be decided on other grounds. As a general proposition that is correct. Here, however,
there is an actual case susceptible of judicial determination. Also, the constitutional question, at the instance of this
Court, was raised by the proper parties, although there was even no need for that because the Court can rule on
the matter sua sponte  when its appellate jurisdiction is involved. The constitutional question was timely raised,
although it could even be raised any time likewise by reason of the jurisdictional issue confronting the
Court. Finally, the resolution of the constitutional issue here is obviously necessary for the resolution of the present
case. [22]
It is, however, suggested that this case could also be decided on other grounds, short of passing upon; the
constitutional question. We appreciate the ratiocination of private respondent but regret that we must reject the
same. That private respondent could be absolved of the charge because the decision exonerating him is final and
unappealable assumes that Section 7, Rule III of Administrative Order No. 07 is valid, but that is precisely one of
the issues here. The prevailing rule that the Court should not interfere with the discretion of the Ombudsman in
prosecuting or dismissing a complaint is not applicable in this administrative case, as earlier explained. That two
decisions rendered by this Court supposedly imply the validity of the aforementioned Section 7 of Rule III is
precisely under review here because of some statements therein somewhat at odds with settled rules and the
decisions of this Court on the same issues, hence to invoke the same would be to beg the question.
V
Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic
Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in
administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the
Constitution against a law which increases the Appellate  jurisdiction of this Court. No countervailing argument has
been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in
First Leparto Ceramics, Inc. vs. The Court of Appeals, el al. [23] was intended to give this Court a measure of control
over cases placed under its appellate Jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging
its appellate jurisdiction would unnecessarily burden the Court [24]

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We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics and
some statements in Yabut and Alba,  not only because of the difference in the factual settings, but also because
those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this
case. By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction.
Furthermore in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770
expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly
yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee
Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of what would later be Republic Act No.
6770, was approved on second reading by the House of Representatives. [25] The Senate was informed of the
approval of the final version of the Act on October 2, 1989 [26] and the same was thereafter enacted into law by
President Aquino on November 17, 1989.
Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure
for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of
the Constitution. It also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of S.B. No.
543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and
Human Rights had not consulted this Court on the matter, thus:

INTERPELLATION OF SENATOR SHAHANI

xxx
Thereafter, with reference to Section 22(4) which provides that the decisions of the Office of the Ombudsman may
be appealed to the Supreme Court, in reply to Senator Shahani's query whether the Supreme Court would agree to
such provision in the light of Section 30, Article VI of the Constitution which requires its advice and concurrence in
laws increasing its appellate jurisdiction, Senator Angara informed that the Committee has not yet consulted the
Supreme Court regarding the matter. He agreed that the provision will expand the Supreme Court's jurisdiction by
allowing appeals through petitions for review, adding that they should be appeals on certiorari.[27] There is no
showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and
consent .[28]
VI
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the
1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43.
There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which,
being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it results
in a diminution, increase or modification of substantive rights. Obviously, however, where the law is procedural in
essence and purpose, the foregoing consideration would not pose a proscriptive issue against the exercise of the
rule-making power of this Court. This brings to fore the question of whether Section 27 of Republic Act No. 6770 is
substantive or procedural.
It will be noted that no definitive line can be drawn between those rules or statutes which are procedural,
hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule
may be procedural in one context and substantive in another. [29] It is admitted that what is procedural and what is
substantive is frequently a question of great difficulty. [30] It is not, however, an insurmountable problem if a rational
and pragmatic approach is taken within the context of our own procedural and jurisdictional system.
In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower
courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure,
that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them. [31] If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if
it operates as a means o implementing an existing right then the rule deals merely with procedure. [32]
In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power,
of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary
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actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to
procedure only.[33] This is so because it is not the right to appeal of an aggrieved party which is affected by the
law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been
changed. The rationale for this is that litigant has a vested right in a particular remedy, which may be changed by
substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the
remedy.[34]
Furthermore, it cannot be said that transfer of appellate jurisdiction to the Court of Appeals in this case is an
act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate
appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as
impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that
remedy.[35]
Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another,
are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute
went into effect[36] or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of
jurisdiction ex hypothesi the validity of the transfer of appeals in said cases to the Court of Appeals can be
sustained.
WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule
III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of
law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative
disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of
no further force and effect.
The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said
petition to be considered by the Court of Appeals pro hac vice  as a petition for review under Rule 43, without
prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents
or records as it may deem necessary and proper.
SO ORDERED.

11. Namonge v. Ombudsman

12. Enemecio v. Omudsman

FIRST DIVISION

[G.R. No. 146731. January 13, 2004]

AGUSTINA M. ENEMECIO, petitioner, vs. OFFICE OF THE OMBUDSMAN (VISAYAS) and SERVANDO
BERNANTE, respondents.

DECISION
CARPIO, J.:

The Case
Before us is a petition for review on certiorari[1] assailing the Resolution[2] dated 31 May 2000 of the Court of
Appeals in CA-G.R. SP No. 58875. The Court of Appeals dismissed for being an inappropriate remedy the petition
for certiorari filed by petitioner Agustina M. Enemecio against respondents Office of the Ombudsman and Servando
Bernante. The present petition also assails the Court of Appeals Resolution dated 7 December 2000 denying
petitioners motion for reconsideration.
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The Antecedents
Petitioner Agustina M. Enemecio (Enemecio) is a utility worker at the Cebu State College of Science and
Technology, College of Fisheries Technology (CSCST-CFT), Carmen, Cebu.Private respondent Servando
Bernante (Bernante) is an Assistant Professor IV of CSCST-CFT.
On 30 March 1998, Enemecio filed an administrative complaint for gross misconduct, falsification of public
documents, malversation, dishonesty and defamation against Bernante before the Office of the Executive Dean of
CSCST-CFT.[3] Dr. Severino R. Romano, CSCST-CFT Executive Dean, indorsed the complaint to the Office of the
Ombudsman for the Visayas (Ombudsman).
Enemecio also filed with the Ombudsman a criminal complaint against Bernante for falsification of public
document.[4] The Ombudsman ordered Enemecio to submit her affidavit and the affidavits of her witnesses. After
Enemecio submitted the required affidavits, the Ombudsman ordered Bernante to submit his counter-affidavit. The
administrative complaint was docketed as OMB-VIS-ADM-98-0201, while the criminal complaint was docketed as
OMB-VIS-CRIM-98-0286. The Ombudsman jointly tried the two cases.
Enemecio alleged that Bernante had caused the spray-painting of obscene and unprintable words against her
on the walls of the CSCST Carmen Campus. Enemecio claimed that Bernante also shouted defamatory words
against her while she was inside the school premises. Enemecio further asserted that Bernante made it appear in
his leave application that he was on forced leave from 15 May 1996 to 21 May 1996 and on vacation leave from 22
May 1996 to 31 May 1996. In truth, Bernante was serving a 20-day prison term, from 14 May 1996 to 2 June 1996,
because of his conviction of the crime of slight physical injuries in Criminal Case No. NR-1678-CR. Bernante was
able to receive his salary during his incarceration since then CSCST-CFT Superintendent Andres T. Melencion
approved Bernantes application for leave. Enemecio contended that Bernante was not entitled to receive salary for
that period because of his falsified leave applications. [5]
For his part, Bernante did not deny that he was in prison from 15 May 1996 to 31 May 1996. He maintained
that he received his salary for that period because of his duly approved leave applications.  Bernante also alleged
that Enemecio filed the criminal and administrative complaints against him in retaliation for the case he filed against
Enemecios friends, Dean Severino Romano and Bernadette Mante. Bernante denied he was behind the spray-
painting of obscenities against Enemecio on the walls of the school campus. [6]
On 13 January 2000, the Ombudsman rendered a decision dismissing the administrative complaint against
Bernante in OMB-VIS-ADM-98-0201. The Ombudsman explained:

On the issue of the alleged falsification of respondents application for leave by making it appear that he was on
vacation when in truth and in fact he was serving a sentence for a criminal conviction, we have determined that
there is no regulation restricting the purpose or use of an employees earned leave credits.Considering that the
application for leave filed by the respondent was duly approved by the appropriate official concerned, it matters not
how he utilizes his leave for it is not a requirement that the specifics or reasons for going on leave be spelled out in
such application.

On the issue of the spray painting of obscenities on the walls of the school, the evidence is insufficient to prove that
respondent was the person responsible for such as there were no eye witnesses to such activity. The testimony of
Bernadette Mante merely identifies the respondent as allegedly having a drinking session with security guard
Estanislao Lavaria at around 11:00 on the night of March 29, 1998. Furthermore, witness Mante states that there
are about ten (10) to twelve (12) families living inside the dormitory facing the school walls where the grafitti
appeared. Despite this number, not one single person appeared to have witnessed respondent spray painting the
questioned grafitti on the walls of the campus (TSN, April 19, 1999). While it may be probable that the only person
or persons who could have had the opportunity to spray paint the said grafitti on the night of March 29, 1998 or in
the early morning hours of March 30, 1998 were the respondent and security guard Lavaria, this is not sufficient
justification to directly blame them for such event.

Regarding the complainants allegation that on March 10 and 25, 1998, the respondent defamed the former by
uttering slanderous words, it appears that only the incident occurring on March 10, 1998 was corroborated by the
testimony of witness Delfin Buot (TSN, April 7, 1998). Witness Buot testified that he was about (3) meters from the
respondent when the latter shouted the words buricat (whore) putang ina and maot (snob) to the
complainant. However, the circumstances of the utterance, particularly the time and the relation of the protagonists
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involved, leads us to conclude that the same is removed from the official functions of the respondent as a professor
of the school. Stated otherwise, the act of the respondent was not in relation to his official functions. In the case
of Palma vs. Fortich, et al., 147 SCRA 397, the Supreme Court ruled that:

In administrative actions against municipal officers, the Supreme Court in Festijo v. Crisologo, et al. (17 SCRA 868,
869 [1966]), classified the grounds for suspension under two categories, namely: (1) those related to the discharge
of the functions of the officer concerned (neglect of duty, oppression, corruption or other forms of maladministration
of office and (2) those not so connected with said functions. Under the second category, when the crime involving
moral turpitude is not linked with the performance of official duties, conviction by final judgment is required as a
condition precedent to administrative action.

Therefore, inasmuch as the oral defamation charge is now pending before the Municipal Circuit Trial Court in
Catmon, Cebu under Criminal Case No. 30006-CR, the matter of respondents administrative culpability is still
premature to be determined herein.[7]
On the same date, the Ombudsman dismissed the criminal complaint against Bernante in OMB-VIS-CRIM-
98-0286[8] finding no probable cause to indict Bernante for falsification of public document. The Ombudsman
explained thus:

It is well established by documentary evidence that the applications for leave filed by the respondent for the period
from May 15 to 31, 1996 were duly approved by the head of office, which in this case is Mr. Andres T. Melencion,
Vocational School Superintendent. All these leaves were with pay indicating that the respondent availed of his
leave credits which are undeniably due to him by law. It matters not how the respondent utilizes the days where he
is on leave, be they enjoyed as a vacation or, in this case, incarceration for a crime. There appears to be no
regulation or law against the utilization of leave credits for purposes other than recreation. As such, there could be
no falsification where nothing is being misrepresented in the official leave forms which the respondent prepared and
submitted.[9]
The Ombudsman denied Enemecios motion to reconsider the dismissal of the criminal complaint in its Order
of 28 February 2000. In denying the motion, the Ombudsman stated:

We find the complainants arguments untenable. There is no dispute that the leave forms are public
documents. What is in dispute is whether or not the failure of the respondent to indicate therein the reasons for his
leave amounts to a crime of falsification. It is submitted that it does not, for the simple reason that the form itself
does not require stating the reasons for going on leave. An employee simply indicates through check marks the
nature of the leave he is availing of, which in the case at bar, respondent chose to avail of his forced and vacation
leave credits. Nevertheless, the omission does not affect the validity of its approval. What is indicated in the leave
forms is only the need to specify the whereabouts of the employee who goes on leave. However, it is not a
requirement that specifics must be provided. In any case the omission to state the location of a vacationing
employee is not a condition sine-qua-non for its approval.

To sum it up, there is no falsification of leave forms where there is no requirement for the indication of reasons for
going on leave. Regardless of such a requirement, the need to indicate the whereabouts of a vacationing employee
is not a necessity for its approval.[10]
Enemecio filed a special civil action for certiorari before the Court of Appeals, assailing the resolutions which
dismissed the criminal complaint and denied the motion for reconsideration in OMB-VIS-CRIM-98-0286. Applying
the ruling in Fabian v. Desierto,[11] the appellate court dismissed Enemecios petition for having been filed out of
time. The appellate court also stated that the proper remedy available to Enemecio was a petition for review under
Rule 43 and not a petition for certiorari under Rule 65.
In her motion for reconsideration, Enemecio argued that the appellate court should not have relied
on Fabian.  Enemecio contended that Fabian declared void only Section 27 of Republic Act No. 6770 (RA 6770)
and Section 7, Rule III of Administrative Order No. 07 (AO No. 07) insofar as they provide for appeals in
administrative disciplinary cases from the Ombudsman to the Supreme Court. Enemecio asserted that the other
provisions of Section 27 of RA 6770 and Section 7 of AO No. 07, including the final and unappealable character of
orders, resolutions or decisions exonerating a respondent from any criminal liability, still stand. Enemecio stated
that she filed the petition for certiorari under Rule 65 with the Court of Appeals because she considered Bernantes
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absolution from the administrative complaint in OMB-VIS-ADM-98-0201 as already final and unappealable. As
there was no adequate remedy of appeal, Enemecio claimed that her only recourse was a petition for certiorari
before the appellate court under Rule 65.[12]
The Court of Appeals denied Enemecios motion for reconsideration in its Order of 7 December 2000.
Hence, this petition for review.

The Ruling of the Court of Appeals

In dismissing the petition, the Court of Appeals stated that in Fabian, the Supreme Court held that appeals in
administrative disciplinary cases from the Ombudsman to the Court of Appeals must be brought by petition for
review under Rule 43. The appellate court stated that a petition for review must be filed within 15 days from notice
of the assailed final order or resolution. Since Enemecio received on 22 March 2000 a copy of the Ombudsmans
Order denying her motion for reconsideration, the appellate court ruled that Enemecio had only until 6 April 2000 to
file a petition for review. Enemecio filed her petition only on 8 May 2000. The appellate court further stated that
Enemecios allegation in the petition that there is no appeal or other plain, speedy or adequate remedy in the
ordinary course of law is false. The proper remedy available to Enemecio is a petition for review. [13]
In denying Enemecios motion for reconsideration, the Court of Appeals clarified that Fabian  does not apply to
Enemecios petition assailing the dismissal of the criminal complaint against Bernante. The appellate court stated
that what Fabian declared void was Section 27 of RA 6770, which authorized appeals to the Supreme Court from
decisions of the Ombudsman in administrative disciplinary cases. Under the Fabian ruling, the appellant should
take such appeal in administrative disciplinary cases to the Court of Appeals under Rule 43. The Court of Appeals
added that it follows that the power to review decisions of the Ombudsman in criminal cases is retained by the
Supreme Court under Section 14 of RA 6770. Thus, the appellate court dismissed the petition for lack of
jurisdiction.[14]

The Issues
Enemecio contends that:

1. The Court of Appeals gravely abused its discretion in refusing to assume jurisdiction over the petition.

2. The Court of Appeals gravely erred in failing to appreciate that a petition for certiorari under Rule 65
was the appropriate course of action considering the circumstances obtaining.

3. The Court of Appeals gravely erred in dismissing the petition for certiorari under Rule 65 filed by
petitioner by misinterpreting the ruling of the Supreme Court in Fabian vs. Desierto.[15]
The issues boil down to whether a petition for certiorari under Rule 65 filed before the Court of Appeals is the
proper remedy to question the dismissal of a criminal complaint filed with the Ombudsman.

The Courts Ruling

We resolve to dismiss this petition.
Enemecio filed before the Court of Appeals a petition for certiorari under Rule 65[16] questioning the
Ombudsmans Resolution dated 13 January 2000 and Order dated 28 February 2000 dismissing the criminal case
against Bernante.[17] Thus, the Prefatory statement of Enemecios Petition in the Court of Appeals states:

This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to nullify the Resolution dated 13
January 2000 and the Order dated 28 February 2000 both issued by the Public Respondent in the Ombudsman
Case docketed as OMB-VIS-CRIM-98-0201 and entitled, Agustina Enemecio vs. Servando Bernante, Asst.
Professor IV, CSCST- College of Fisheries Technology, Carmen, Cebu, for being a manifest and grave abuse of
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discretion amounting to excess of jurisdiction. The Resolution dated 13 January 2000 dismissed the criminal
complaint for malversation and falsification of public documents filed against herein Private Respondent while the
Order dated 28 February 2000 denied herein Petitioners Motion for Reconsideration. Certified machine copies of
the aforesaid Resolution and Order are hereto appended as Annexes A and B respectively. (Emphasis supplied)
The appellate court dismissed Enemecios petition and denied her motion for reconsideration. Enemecio now
comes to this Court via this petition for review, claiming that what was involved in the petition before the
appellate court was the administrative, not the criminal case.[18] Enemecio thus stresses that there is no reason
for the Court of Appeals to say that the petition concerned the criminal case. [19]
We cannot countenance the sudden and complete turnabout of Enemecio and her counsel, Atty. Terence L.
Fernandez. Atty. Fernandezs conduct has fallen far too short of the honesty required of every member of the Bar.
It is clear from the records that Atty. Fernandez filed with the Court of Appeals a  certiorari petition assailing the
Ombudsmans Resolution and Order dismissing the criminal case, not the administrative case against
Bernante. For this reason, the appellate court in its 7 December 2000 Resolution rectified itself and stated
that Fabian does not apply to Enemecios petition as the Fabian ruling applies only to administrative disciplinary
actions. Atty. Fernandezs attempt to mislead this Court in a last ditch effort to secure a decision favorable to his
clients cause does not escape our attention. As an officer of the court, Atty. Fernandez is duty bound to uphold the
dignity and authority of the court to which he owes fidelity according to the oath he has taken as attorney, and not to
promote distrust in the administration of justice. He must always bear in mind that good faith and honorable
dealings with judicial tribunals are primary obligations of an attorney. He must always remember to deal with courts
with truthfulness and not to trifle with court proceedings. [20] For this, Atty. Fernandez should be admonished not to
commit similar acts again.
Even if we consider Enemecios petition before the Court of Appeals as questioning the dismissal of the
administrative case against Bernante, the action must also fail. Appeals from decisions of the Ombudsman in
administrative disciplinary actions should be brought to the Court of Appeals under Rule 43. [21] The only provision
affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 as the
proper mode of appeal. All other matters in Section 27 of RA 6770, including the finality or non-finality of decisions
of the Ombudsman, remain valid.[22]
In any event, jurisprudence now holds that where the findings of the Ombudsman on the existence of probable
cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the
aggrieved party may file a petition for certiorari with the Supreme Court under Rule 65. [23] Since Enemecio filed
a certiorari petition before the Court of Appeals, instead of the Supreme Court, she availed of a wrong remedy in
the wrong forum. Hence, the instant petition should be dismissed outright.
Even if we consider the substance of the case, we find no grave abuse of discretion in the Ombudsmans
determination of whether there exists a prima facie case against Bernante.
Enemecio assails the dismissal of the criminal charges against Bernante for two reasons: (1) that she was able
to prove before the Ombudsman the charge for malversation against Bernante; and (2) that Bernante himself
admitted that he signed and filed the subject leave applications.
Enemecio asserts that she was able to present before the Ombudsman the payroll of the CSCST-CFT
employees covering the period from 16 May 1996 to 31 May 1996 signed by Bernante.  Enemecio asserts that this
document proved that Bernante actually received and was paid the amount of P3,185.08 as a result of his falsified
letter-requests and leave applications. According to Enemecio, these constituted acts of malversation.
Enemecios contentions do not deserve serious consideration.
Under Article 171, paragraph 4 of the Revised Penal Code, the elements of falsification of public documents
through an untruthful narration of facts are: (a) the offender makes in a document untruthful statements in a
narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts
narrated by the offender are absolutely false; and (d) the perversion of truth in the narration of facts was made with
the wrongful intent to injure a third person.[24]
As the Ombudsman correctly pointed out, Enemecio failed to point to any law imposing upon Bernante the
legal obligation to disclose where he was going to spend his leave of absence.  Legal obligation means that there is
a law requiring the disclosure of the truth of the facts narrated. [25] Bernante may not be convicted of the crime of

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falsification of public document by making false statements in a narration of facts absent any legal obligation to
disclose where he would spend his vacation leave and forced leave.
In PCGG v. Desierto,[26] the Court ruled that the Ombudsman has the discretion to determine whether a
criminal case, given the facts and circumstances, should be filed or not. The Ombudsman may dismiss the
complaint forthwith if he finds it insufficient in form or substance. On the other hand, he may continue with the
inquiry if he finds otherwise. If, in the Ombudsmans view, the complaint is sufficient in form and substance, he may
proceed with the investigation. In fact, the Ombudsman has the power to dismiss a complaint outright without going
through a preliminary investigation.[27]
Our evaluation of the records leads us to the conclusion that the Ombudsman has carefully studied the merits
of the criminal complaint. Where the Ombudsman has thoroughly examined the merits of the complaint, it would not
be right to subject the private respondent to an unnecessary and prolonged anguish. [28]
WHEREFORE, the petition is DENIED for lack of merit. No costs.
SO ORDERED.

13. Kuizon v. Desierto

FIRST DIVISION

[G.R. Nos. 140619-24. March 9, 2001]

BENEDICTO E. KUIZON, JOSELITO RANIERO J. DAAN AND ROSALINA T. TOLIBAS, petitioners, vs. HON.
ANIANO A. DESIERTO, in his capacity as OMBUDSMAN and the HON. SANDIGANBAYAN (FOURTH
DIVISION), respondents.

DECISION
PUNO, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court filed by incumbent Municipal Mayor of Bato,
Leyte, Benedicto E. Kuizon, Joselito Raniero J. Daan and Rosalina T. Tolibas to set aside the approval by the
respondent Ombudsman Aniano A. Desierto of the Memorandum dated May 17, 1999 of Paul Elmer M. Clemente
of the Office of the Chief Legal Counsel, Office of the Ombudsman, recommending the prosecution of herein
petitioners.
The cases subject of this petition emanated from a complaint [1] filed on December 8, 1995 by one Melanio
Saporas with the Office of the Ombudsman-Visayas (OMB-Visayas) against petitioner Benedicto Kuizon for
Nepotism and Malversation Thru Falsification of Public Documents in connection with the forging of signatures
of some casual laborers of Bato, Leyte in the payroll slips of the municipality and the drawing of their salaries on
different dates. The case was docketed as OMB-VIS-CRIM-95-0646.
Attached to Saporas' complaint is the affidavit of one Zacarias Kuizon who claimed to have been formerly
hired by petitioner Kuizon as a laborer at Bato, Leyte. Petitioner Kuizon allegedly had already dispensed with the
services of Zacarias for the month of February, 1995 but the latter's signature was forged in the payroll for the said
month and somebody took his salary in the amount of P890.00 for that period. [2]
In an Evaluation Report dated December 19, 1995, June L. Iway, Graft Investigation Officer I of the OMB-
Visayas, recommended that petitioners Rosalina T. Tolibas and Joselito Raniero J. Daan, Paymaster/Municipal
Treasurer and Timekeeper, respectively, should be included in the complaint as respondents.
In an Order dated December 19, 1995, petitioners were ordered to file their counter-affidavits.  On February 20,
1996, petitioners submitted their Answer with Special Affirmative Defenses, [3] attaching therewith the counter-
affidavits of petitioners Daan and Tolibas [4] as well as the affidavits of several witnesses [5] to rebut the accusations
of Saporas and Zacarias Kuizon.

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Meanwhile on November 15, 1995, Saporas filed another complaint against petitioners with the Office of the
Ombudsman, Manila docketed as OMB-2-96-0049. The complaint was referred to the Office of the Deputy
Ombudsman for the Visayas in an Indorsement dated January 29, 1996. On March 21, 1996, petitioners were
required to file their respective counter-affidavits. On April 22, 1996, petitioner Kuizon, assisted by Atty. Leo Giron,
filed his counter-affidavit,[6] attaching therewith the counter-affidavits of petitioners Tolibas and Daan. OMB-Visayas
granted petitioners' Motion for Consolidation of Cases and Setting of Hearing of the two (2) complaints.
On May 28, 1996, complainant Saporas submitted the affidavits of Ceferino Cedejana [7] and Concordio
Cedejana[8] in support of his allegations in OMB-2-96-0049. Both Ceferino and Concordio made virtually similar
allegations as those made by Zacarias except the amounts representing their salaries for the month of February,
1995 which are P2,136.00 and P1,157.00, respectively.
Petitioners filed a Motion to Exclude the Affidavits of Ceferino and Concordio [9] which was denied in an Order
dated July 8, 1996. They filed their supplemental counter-affidavit on July 26, 1996 in compliance with the order
requiring them to do so. On separate dates, petitioners filed their Joint Position Paper [10] and Joint Supplemental
Memorandum.[11]
On June 20, 1997, OMB-Visayas thru Graft Investigation Officer I Samuel Malazarte issued a Resolution [12] in
OMB-VIS-CRIM-95-0646 and OMB-2-96-0049 recommending the filing of the Informations for Malversation and
Falsification of Public/Official Document on two (2) counts each against all the petitioners before the
Sandiganbayan. GIO Malazarte recommended however the dismissal of the complaint for nepotism against
petitioner Kuizon. The pertinent portion of the said Resolution states:

"While complainant's witnesses, Zacarias Kuizon, is shown to have used two different signatures in signing
documents, such as those found on a Joint Affidavit and an Affidavit (Annexes "1" and "2", respectively, of
respondent Mayor's Counter-Affidavit), yet there is no proof shown that the aforesaid witness has affixed on any
other document a signature similar, if not exactly the same, as the questioned signature purportedly that of the
same witness appearing on the above-mentioned Time Book and Payroll for the period February 16 to 28, 1995. It
is likewise not shown that complainants' two other witnesses, Ceferino Cedejana and Concordio Cedejana, has
[sic] signed on any other document signatures similar, if not the same, as the questioned signature(s) appearing on
the Time Book and payroll for the periods February 1 to 15, 1995 and February 16 to 28, 1995, in the case of
Ceferino Cedejana, and February 1 to 15, 1995, in the case of Concordio Cedejana. Indeed, a person may use two
or more signatures. But in a case as this, where the complainant, or his witnesses, specifically denied the particular
signatures in question and imputed authorship of the falsifications thereof against the respondents, who otherwise
claimed that said questioned signatures belong to the complainant's witnesses, it is incumbent upon the latter to
disprove the denial by solid evidence, such as a finding of a handwriting examiner/expert - considering that they
(respondents) are in possession of the original documents bearing the allegedly falsified/forged signatures. No such
kind of evidence, however, was adduced.

The respondents relied heavily for corroboration on the testimonies of witnesses who, at one time or another, were
co-workers/laborers of complainant's witnesses in the above-mentioned construction of [a] new Municipal Hall
Building of Bato, Leyte. But owing to a high possibility that said respondents' witnesses were coaxed, influenced, or
pressured into signing the affidavits and to so testify, considering the circumstances of their work and place of
residence, the undersigned cannot give full credence to the testimonies of said respondents' witnesses as against
the complainant's witnesses' specific denial of ownership of the questioned signatures, for the purpose of this
preliminary investigation.

From the claims of respondents Joselito Raniero J. Daan and Rosalina T. Tolibas that they personally know the
aforenamed complainant's witnesses and had called their names, made them sign on the payroll[s] in question in
their (respondents') presence and gave them their corresponding salaries, a clear inference can be drawn that
there was collusion or connivance of the aforesaid respondents which is made more manifest by their respective
certifications on the questioned Time Book and Payrolls for the periods February 1 to 15, 1995, and February 16 to
28, 1995. And the respondent Mayor Benedicto E. Kuizon's certification on the same questioned payrolls and his
statement that he knows for a fact that the complainant's witnesses have actually worked during the questioned
period of February 1995 serve to complete the conspiracy." [13]
The Resolution was approved by the respondent Ombudsman Aniano A. Desierto on September 5, 1997.

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Petitioners learned that four (4) Informations dated June 20, 1997 were filed against them on September 16,
1997 with the Sandiganbayan [14] by the Office of the Ombudsman. [15] The cases were docketed as Criminal Case
Nos. 24167[16] and 24169[17] for Falsification of Public/Official Document and Criminal Case Nos. 24168 [18] and
24170[19] for Malversation of Public Funds.
On October 22, 1996, Saporas filed with the OMB-Visayas another Affidavit-Complaint [20] for Malversation of
Public Funds Thru Falsification of Public Documents and violation of R.A. No. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act against herein petitioners and three others, namely, Municipal Treasurer Lolita S.
Regana, Municipal Accountant Ofelia F. Boroy and Budget Officer Glafica R. Suico for alleged connivance in
including in the payrolls for the construction of the municipal building of Bato, Leyte, names of workers whose
services were already terminated, making it appear that they still worked and received salaries even after their
termination from service. The affidavits of Andres Soso Pague [21] and Danilo Cortes[22] were attached to the said
complaint which was docketed as OMB-VIS-CRIM-96-1173 and OMB-VIS-ADM-96-0474.
Only petitioner Daan filed his counter-affidavit in OMB-VIS-CRIM-96-1173.[23] Petitioners Kuizon and Tolibas
as well as the three (3) other respondents therein, namely, Regana, Boroy and Suico filed an Answer/Counter-
Affidavits/Manifestation in OMB-VIS-ADM-96-0474[24] as shown in the caption of their pleading. Attached therewith
were the affidavits of petitioners' witnesses Felipe Cortez[25], Melquiades Jupista, Alberto Gerongco, Noel Umapas,
[26]
 Jhonny Mario, Ricardo Garao, Savino Kuizon,[27] Domingo Echevarre,[28] Alfonso Tabale, Alberto Gerongco,
Romeo Marino, Vicente Marino[29]and Marciano Bohol.[30]
On July 28, 1997, OMB-Visayas thru Graft Investigation Officer I Venerando Ralph P. Santiago, Jr. issued a
Resolution[31] in OMB-VIS-CRIM-96-1173 finding sufficient grounds to hold petitioners for trial for Malversation of
Public Funds and Falsification of Public Documents. The Resolution reads in part, thus:

"Joselito Rainero (sic) K. (sic) Daan, the lone respondent who filed his counter-affidavit, claimed that Danilo S.
Cortez and Andres S. Pague, personally signed the payrolls. If these were true, then Messrs. Cortez and Pague
must have worked during those times indicated in the payrolls when their names appeared. But according to them
they worked only for less than one month, and this allegation was not controverted by the respondents - even by
the answering respondent.How could they have claimed their salaries without working for these?

The claim of respondent Daan is even belied by the copies of the payrolls attached to the complaint. A scrutiny
between the signatures of Danilo S. Cortez and Andres S. Pague in their affidavits and those in the payrolls reveals
a striking difference, especially that of Danilo S. Cortez in the payrolls for the months of November and December,
1995 (pp. 22, 24 & 28, record). This dissimilarity of signatures of Messrs. Cortez and Pague in their affidavits and in
the payrolls is sufficient to form a well founded belief that the latter documents had been forged and their salaries
were maliciously appropriated by the respondents for their personal use. And the Forgery and Malversation could
only be committed by the persons who prepared and approved the payrolls, namely: Benedicto E. Kuizon, Joselito
Rainero (sic) K. (sic) Daan and Rosalinda T. Tolibas. This is not a farfetched conclusion because respondents
Kuizon and Daan certified that the persons whose names appeared in the payrolls had rendered their services,
while respondent Tolibas certified that he had paid in cash to the persons whose names appeared on the payrolls,
the amount set opposite their names, they having presented themselves, established their identity and affixed their
signatures or thumb marks on the space provided therefor.

This Office also finds that the falsification was committed to conceal the malversation, the payrolls having been
used by the above-named respondents as supporting documents to liquidate the cash advances they had received
for the payment of the salaries of the workers." [32]
The Resolution was approved by the respondent Ombudsman Aniano A. Desierto on September 19, 1997.
Upon verification, the petitioners learned that two (2) Informations [33] both dated July 28, 1997 were filed
against them in September, 1997 by the Office of the Ombudsman with the Sandiganbayan. [34]The cases were
docketed as Criminal Case Nos. 24195 for Malversation of Public Funds and 24196 for Falsification of Public
Documents.
Petitioners filed two (2) separate Motions for Reinvestigation [35] both dated October 4, 1997 in Criminal Case
Nos. 24167 to 24170 and Criminal Case Nos. 24195 to 24196. Petitioners likewise filed a Motion for Consolidation
of Criminal Case Nos. 24195 and 24196 with the four (4) other cases which was granted by the Sandiganbayan
(Third Division) in its Order[36] dated October 30, 1997.
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In an Order dated November 24, 1997, [37] the Sandiganbayan (Fourth Division) granted the two (2) Motions for
Reinvestigation filed by the petitioners. On June 10, 1999, Special Prosecution Officer II Lemuel M. De Guzman
filed a Manifestation[38] with the Sandiganbayan which reads as follows:

"1. In a Memorandum dated August 19, 1998, a certified true copy of which is hereto attached and made an integral
part hereof as Annex "A", the undersigned terminated action on the two (2) Motions for Reconsideration dated
October 4, 1997 filed by all the accused as well as the Counter-Affidavit dated February 7, 1998 filed by accused
Benedicto E. Kuizon in the above-captioned cases and recommended the exclusion of accused Mayor Benedicto
E. Kuizon as party-accused therein and to remand the case to the regular court for the prosecution of accused
Joselito Ramiero (sic) K. (sic) Daan and Rosalina T. Tolibas.

2. On September 8, 1998, the Honorable Special Prosecutor Leonardo P. Tamayo required Special Prosecution
Officer Norberto B. Ruiz to take a second look into the undersigned's memorandum. In another Memorandum dated
November 16, 1998, a certified true copy of which is hereto attached and made [an] integral part hereof as Annex
"B", Prosecutor Ruiz recommended the affirmation of the previous memorandum, which the Honorable Special
Prosecutor concurred in.

3. On May 7, 1999, before acting on the cases, the Honorable Ombudsman referred the records thereof to the
Office of the Chief Legal Counsel (OCLC) '(F)or review considering that OSP seeks to reverse the Ombudsman's
findings.'

4. In a Memorandum dated May 17, 1999, a certified true copy of which is hereto attached and made [an] integral
part hereof as Annex "C", OCLC recommended the continued prosecution of all the accused 'there being no cogent
grounds to warrant a reversal of the finding of probable cause by OMB-Visayas.' This memorandum was approved
by the Honorable Ombudsman on June 1, 1999 and, accordingly, the undersigned's memorandum was
disapproved with the following marginal note: 'Prosecution of all the accused shall proceed as recommended by
OCLC.'"[39]
Thereafter, the Sandiganbayan set the criminal cases for hearing on August 16, 18 to 20, 1999. Petitioner
Daan filed with the Sandiganbayan an Urgent Motion for Reinvestigation and to Defer Arraignment [40] dated August
12, 1999. In an Order dated August 16, 1999, the motion was denied by the Sandiganbayan. [41] Petitioners were
arraigned on the same date and they all pleaded "not guilty" to the crimes charged. [42] The pre-trial and the trial on
the merits were then set upon agreement of the parties.
On September 6, 1999, petitioners filed a petition before the Court of Appeals captioned "Benedicto E. Kuizon,
et al. vs. Hon. Aniano A. Desierto, et al." and docketed as CA-G.R. SP No. 54898, assailing the approval by the
respondent Aniano A. Desierto of the Memorandum of his Legal Counsel which recommended the continued
prosecution of the petitioners. The Court of Appeals issued a temporary restraining order in a Resolution dated
September 17, 1999. On even date, petitioners filed a Motion for Suspension of Proceedings and/or Postponement
with the Sandiganbayan.
On October 19, 1999, the Court of Appeals promulgated a Resolution [43] which states:

"Per the decision of the Supreme Court in the case of Teresita G. Fabian vs. Aniano A. Desierto, G.R. No. 129742,
September 16, 1998, the jurisdiction of this Court extends only to decisions of the Office of the Ombudsman
in administrative cases. The cases involved in the instant petition are criminal cases.

WHEREFORE, the petition for certiorari is DENIED DUE COURSE and accordingly DISMISSED, for lack of
jurisdiction."[44]
On November 4, 1999, petitioners filed the instant petition based on the following grounds:

"A. The Office of the Ombudsman committed grave abuse of discretion amounting to lack of jurisdiction when it
deprived herein petitioners of the opportunity to file motions for reconsideration of the resolutions of the Office of
Ombudsman-Visayas (Annexes "G" and "M" hereof);[45]

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B. The Honorable Ombudsman Aniano A. Desierto committed grave abuse of discretion amounting to lack of
jurisdiction when he approved the Memorandum of Legal Counsel Paul Elmer M. Clemente (Annex "C",
Manifestation of Special Prosecution Officer Lemuel De Guzman) despite the fact that no reinvestigation was
conducted with respect to herein petitioners Joselito Raniero J. Daan and Rosalina T. Tolibas; [46]

C. The Honorable Ombudsman Aniano A. Desierto committed grave abuse of discretion amounting to lack of
jurisdiction when he approved the Memorandum of Legal Counsel Paul Elmer M. Clemente (Annex "C",
Manifestation of Special (sic) Prosecution Lemuel De Guzman to the Sandiganbayan) reinstating the prosecution of
the criminal cases as against petitioner Benedicto Kuizon; [47] and

D. The Honorable Sandiganbayan, with due respect, also committed grave abuse of discretion amounting to lack of
jurisdiction in proceeding with the trial of the cases against herein petitioners." [48]
On December 1, 1999, this Court issued a Status Quo Order.
We will first dispose of the procedural issues raised by the parties. Respondent alleges that the petition was
filed out of time considering that more than sixty (60) days had elapsed from the time respondent Sandiganbayan's
Order dated August 16, 1999 denying petitioners' Motion to Defer Arraignment and petitioner Daan's Urgent Motion
for Reinvestigation and to Defer Arraignment was rendered.The erroneous filing by the petitioners of their petition
with the Court of Appeals did not allegedly toll the running of the period to file the same with this Court. [49] In reply
thereto, petitioners submit that the 60-day period should not be strictly applied to them considering that they
originally filed their petition with the Court of Appeals within the prescribed period. They maintain that the Court of
Appeals has concurrent jurisdiction with this Court on special civil actions for certiorari under Rule 65 applying the
doctrine in St. Martin Funeral Homes vs. National Labor Relations Commission. [50] Petitioners now raise the issue
as to which court has jurisdiction over petitions for certiorari under Rule 65 questioning resolutions or orders of the
Office of the Ombudsman in criminal cases.[51]
In dismissing petitioners' petition for lack of jurisdiction, the Court of Appeals cited the case of Fabian vs.
Desierto.[52] The appellate court correctly ruled that its jurisdiction extends only to decisions of the Office of the
Ombudsman in administrative cases.[53] In the Fabian case, we ruled that appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under Rule 43 of the
1997 Rules of Civil Procedure. It bears stressing that when we declared Section 27 of Republic Act No. 6770 [54] as
unconstitutional, we categorically stated that said provision is involved only whenever an appeal by certiorari under
Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an
original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in
a criminal action.[55] In fine, we hold that the present petition should have been filed with this Court.
It follows that the instant petition was filed late. A petition for certiorari should be filed not later than sixty (60)
days from notice of the judgment, order or resolution sought to be assailed. [56] The present petition was filed with
this Court only on November 24, 1999 which is more than sixty (60) days from the time petitioners were notified of
the adverse resolutions issued by the Office of the Ombudsman. The erroneous filing of the petition with the Court
of Appeals did not toll the running of the period.
But even on its merit, the petition cannot succeed. Petitioners primarily invoke denial of due process. They
contend that they were not accorded the opportunity to file a Motion for Reconsideration since they were not
furnished copies of the adverse Resolutions issued by the OMB-Visayas prior to their approval by the respondent
Ombudsman Desierto. The Office of the Ombudsman allegedly railroaded the preliminary investigation of the cases
in violation of Sections 6 and 7 of Administrative Order No. 07, as amended by Administrative Order No. 09 which
provides that:

"Sec. 6. Notice to parties. - The parties shall be served with a copy of the resolution as finally approved by the
Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for Reconsideration. -

(a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the
same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the Deputy
Ombudsman as the case may be.
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(b) x x x x x x x x x."

Section 6 of the aforequoted provision speaks of two (2) approving authorities with respect to resolutions issued by
the Office of the Ombudsman. Hence, the phrase "as finally approved by the Ombudsman or by the proper Deputy
Ombudsman."
As succinctly discussed in the respondent's Comment, it is the procedure in the Office of the Ombudsman that
any Memorandum and/or Resolution of any criminal case pending before its Office which involves high ranking
officials under R.A. 8249[57] should have the approval of the Ombudsman before the same may be released and
considered the official action of the Office of the Ombudsman. Since petitioner Kuizon falls under the category of
high ranking officials under R. A. 8249 who is charged with conspiracy with the other two (2) petitioners, the
Resolutions dated June 20, 1997 and July 28, 1997 need the approval of the Honorable Ombudsman. [58] This finds
support in Sec. 4 (g), Rule II of Administrative Order No. 07 which provides:

"Sec. 4. Procedure. - The preliminary investigations of cases falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court,
subject to the following provisions:

x x x x x x x x x

(g) Upon the termination of the preliminary investigation, the investigation officer shall forward the records of the
case together with his resolution to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval
of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy
Ombudsman in all other cases." (emphasis supplied)
Prescinding from the foregoing discussions, the resolutions which must be furnished to the petitioners refer to
those approved by the respondent Ombudsman. Respondent alleges that copies of the challenged Resolutions as
approved by the Honorable Ombudsman on different dates [59] were sent to the parties by registered mail on
September 12, 1997 and September 24, 1997, respectively. [60]Petitioners deny having received copies of these
resolutions.
The issue is not of momentous legal significance for non-compliance with Sections 6 and 7 of Administrative
Order No. 7 does not affect the validity of the Informations filed with the Sandiganbayan.  In the case of Pecho vs.
Sandiganbayan,[61] we held:

"Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of the Rules of Procedure of
the Office of the Ombudsman. The presumption of regularity in the performance of official duty on the part of the
investigating Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a copy of an
adverse resolution pursuant to Section 6 which reads:

'SEC. 6. Notice to parties. - The parties shall be served with a copy of the resolution as finally approved by
the Ombudsman or by the proper Deputy Ombudsman.'

does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the
information is based was not served upon the respondent. The contention that the provision is mandatory
in order to allow the respondent to avail of the 15-day period to file a motion for reconsideration or
reinvestigation is not persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be
filed and acted upon by the Ombudsman if so directed by the court where the information was filed. Finally,
just as in the case of lack of or irregularity in the conduct of the preliminary investigation, a party, like the petitioner
herein, should have seasonably questioned the procedural error at any time before he entered his plea to the
charge. His failure to do so amounted to a waiver or abandonment of what he believed was his right under Sections
6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman." [62](emphasis supplied)
Petitioners further allege that the OMB-Visayas resolved the case in OMB-CRIM-96-1173 solely on the basis
of the complaint of Saporas and the affidavits of Cortes and Pague. Petitioners' Answer/ Counter-Affidavits/
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Manifestation were allegedly ignored.[63] The contention is belied by the records of the case. Petitioners were all
required to file their counter-affidavits but only petitioner Daan complied.Petitioners (except Daan) must perforce
suffer the consequences of their inaction.
Petitioners also claim that their Answer/Counter-Affidavits/Manifestation was intended for both the
administrative as well as the criminal complaints. The records reveal otherwise. The docket number in the said
pleading's caption which states "OMB-VIS-ADM-96-0474" indicates that it is for the administrative case only. The
fault lies with the petitioners when they indicated therein an incomplete docket number.  It is their duty to see to it
that all the entries in their pleading including its caption are accurate. If indeed the petitioners committed an
oversight in placing the wrong or incomplete docket number in their pleading, they should have filed the proper
motion or manifestation to correct the purported inaccuracies. It is not the obligation of the Office of the
Ombudsman to supply or supplant any deficiency found in the litigants' pleadings.
The essence of due process is reasonable opportunity to be heard and submit evidence in support of one's
defense.[64] What the law proscribes is lack of opportunity to be heard. [65] The facts show that preliminary
investigations were conducted prior to the filing of the Informations. Petitioners filed their Answer with Special
Affirmative Defenses in OMB-VIS-CRIM-95-0646. Petitioner Kuizon filed his Counter-Affidavit together with the
attached affidavits of petitioners Tolibas and Daan in OMB-2-96-0049. When petitioners learned that four (4)
Informations were filed against them, they filed a Motion for Reinvestigation which the Sandiganbayan granted.  It is
clear therefore that petitioners were not deprived of due process.
We now come to the issue raised by petitioners Daan and Tolibas that there was no reinvestigation conducted
on them. It appears from the records that the Office of the Special Prosecutor who was authorized to conduct the
reinvestigation of the cases did not notify petitioners Daan and Tolibas of the proceedings. Only petitioner Kuizon
filed his counter-affidavit which was solely considered by Special Prosecutor Lemuel de Guzman in his
Memorandum.[66] Be that as it may, we rule against the petitioners. The procedural defect was waived by petitioners
when they entered their plea of "not guilty" to the informations. The settled rule is that when an accused pleads to
the charge, he is deemed to have waived the right to preliminary investigation and the right to question any
irregularity that surrounds it.[67]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.[68]
The petitioners further asseverate that respondent Desierto gravely abused his discretion when he simply
approved the recommendation of the Legal Counsel recommending the filing of informations in court despite the
clear absence of reasonable justification. [69] We reject petitioners' claim. What is involved is merely a review and
affirmation by the respondent Ombudsman of the findings made by the investigating prosecutor.  He need not
restate the facts and elaborate on the applicable law. In Cruz, Jr. vs. People,[70] we held:

"It may seem that the ratio decidendi of the Ombudsman's order may be wanting but this is not a case of a total
absence of factual and legal bases nor a failure to appreciate the evidence presented. What is actually involved
here is merely a review of the conclusion arrived at by the investigating prosecutor as a result of his study and
analysis of the complaint, counter-affidavits, and the evidence submitted by the parties during the preliminiary
investigation. The Ombudsman here is not conducting anew another investigation but is merely determining the
propriety and correctness of the recommendation given by the investigating prosecutor, that is, whether probable
cause actually exists or not, on the basis of the findings of the latter. Verily, it is discretionary upon the Ombudsman
if he will rely mainly on the findings of fact of the investigating prosecutor in making a review of the latter's report
and recommendation, as the Ombudsman can very well make his own findings of fact. There is nothing to prevent
him from acting one way or the other. x x x"[71]
In case of conflict in the conclusions of the Ombudsman and the special prosecutor, it is self-evident that the
former's decision shall prevail since the Office of the Special Prosecutor is under the supervision and control of
the Ombudsman.[72] The action of the respondent Ombudsman in disapproving the findings of Special Prosecutor
De Guzman and approving that of Legal Counsel Clemente does not per se constitute grave abuse of discretion.
Petitioners Daan and Tolibas also claim that their evidence consisting of the affidavit of Pague will show that
there is no probable cause to indict them. The contention lacks merit. We reiterate the rule of long standing that in
the absence of grave abuse of discretion, this Court will not interfere with the exercise by the Ombudsman of his
constitutionally mandated investigatory and prosecutory powers. [73] His findings of probable cause are entitled to
great respect. The rationale behind the said rule has been aptly discussed in Ocampo, IV vs. Ombudsman,[74] thus:

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"The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution
to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be
grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by
the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would
be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private
complainant."[75]
Equally unmeritorious is the petitioners' claim that the Sandiganbayan committed grave abuse of discretion in
proceeding with the trial of their cases. The Sandiganbayan granted petitioners' motion for reinvestigation. It
correctly denied petitioner Daan's subsequent Motion for Reinvestigation and to Defer Arraignment in view of the
respondent Ombudsman's final action to proceed with the prosecution of the cases. Jurisdiction has been acquired
by the Sandiganbayan over the person of the petitioners as they appeared at the arraignment and pleaded not
guilty to the crimes charged.
WHEREFORE, the petition is DISMISSED and the Sandiganbayan is hereby ORDERED to proceed with the
trial of the cases at bar with dispatch. Costs against petitioners.
SO ORDERED.

14. Soliven v. Makasiar

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.

MANZANAS, petitioners, 
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35,
UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY
FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner, 
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE
HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE
WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL
TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner, 
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ,
UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F.
GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court,
at Manila, respondents.

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Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and
83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due
process when informations for libel were filed against them although the finding of the existence of a prima
faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not
the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without
personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or
not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners
through the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice
denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining
the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by
petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the
Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners'
contention that they have been denied the administrative remedies available under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the
preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to
Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due
process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the
preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to
submit counter-affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision reads:

Art. III, 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 nder oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself
of 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
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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.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the
issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the
issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction
cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit
impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the
President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing
her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of
immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of
court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of
Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive
of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided
attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by
the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from
proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so
minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The
choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that
cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged
character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to
the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press
freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as
to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the
public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The
Order to maintain the status quo  contained in the Resolution of the Court en banc  dated April 7, 1988 and
reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griño-Aquino Medialdea and Regalado, JJ., concur.

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Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening
statement. However, as to the more important issue on whether or not the prosecution of the libel case would
produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in
these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano  (134 SCRA 438 [1985]), the Court should not hesitate to
quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the
criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of
governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys
unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the
editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead
of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant.
However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President
who heads the investigation and prosecution service and appoints members of appellate courts but who feels so
terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of
the press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense
lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond
the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize
government or to question government handling of sensitive issues and public affairs, this Court and not a lower
tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos  (37 Phil. 731) stated that "(c)omplete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not
authorized, criticism is to be expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted position
that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws,
every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p.
900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous
charges, would actually invite attacks by those who desire to create sensation. It would seem that what would
ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a
high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals.

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This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez  (76 SCRA 448 [1977]) that a prosecution
for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other
words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the
words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the
willingness of newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their
people to lay off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our
decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited
on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the
citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v.
Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various
other formulae for the repression of expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It must be measured by standards that
satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and that this
should be a fundamental principle of the American government. They recognized the risk to which
all human institutions are subject. But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason
as applied through public discussion, they eschewed silence coerced by law—the argument of
force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie  showing that Messrs. Maximo
Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful
purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated
approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I
realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some provocative words, which if taken literally
may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen
the vigor and limit the variety of public debate? There are many other questions arising from this unusual case
which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see
no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should

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proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most
of our fiscals and judges are courageous individuals who would not allow any considerations of possible
consequences to their careers to stand in the way of public duty. But why should we subject them to this problem?
And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel
without bothering to fully explore the more important areas of concern, the extremely difficult issues involving
government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the
dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he
said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal libel
laws are consistent with the concept of ordered liberty only when applied with safeguards evolved
to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be
faithfully applied.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening
statement. However, as to the more important issue on whether or not the prosecution of the libel case would
produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in
these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano  (134 SCRA 438 [1985]), the Court should not hesitate to
quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the
criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of
governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys
unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the
editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead
of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant.
However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President
who heads the investigation and prosecution service and appoints members of appellate courts but who feels so
terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of
the press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense
lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond
the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize
government or to question government handling of sensitive issues and public affairs, this Court and not a lower
tribunal should draw the demarcation line.
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As early as March 8, 1918, the decision in United States v. Bustos  (37 Phil. 731) stated that "(c)omplete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not
authorized, criticism is to be expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted position
that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws,
every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p.
900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous
charges, would actually invite attacks by those who desire to create sensation. It would seem that what would
ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a
high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez  (76 SCRA 448 [1977]) that a prosecution
for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other
words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the
words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the
willingness of newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their
people to lay off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our
decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited
on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the
citations in Elizalde v. Gutierrez, supra).<äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v.
Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various
other formulae for the repression of expression that have been challenged in this Court, libel can
claim no talismanic immunity from constitutional limitations. It must be measured by standards that
satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and that this
should be a fundamental principle of the American government. They recognized the risk to which
all human institutions are subject. But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason
as applied through public discussion, they eschewed silence coerced by law—the argument of
force in its worst form. ...

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Thus we consider this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie  showing that Messrs. Maximo
Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful
purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated
approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I
realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some provocative words, which if taken literally
may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen
the vigor and limit the variety of public debate? There are many other questions arising from this unusual case
which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see
no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should
proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most
of our fiscals and judges are courageous individuals who would not allow any considerations of possible
consequences to their careers to stand in the way of public duty. But why should we subject them to this problem?
And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel
without bothering to fully explore the more important areas of concern, the extremely difficult issues involving
government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the
dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he
said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal libel
laws are consistent with the concept of ordered liberty only when applied with safeguards evolved
to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be
faithfully applied.

15. Ho v. People of the Philippines

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 106632 October 9, 1997

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DORIS TERESA HO, petitioner, 

vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman)
and the SANDIGANBAYAN (Second Division), respondents.

G.R. No. 106678 October 9, 1997

ROLANDO S. NARCISO, petitioner, 
vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman)
and the SANDIGANBAYAN (Second Division), respondents.

PANGANIBAN, J.:

May a judge issue a warrant of arrest solely on the basis of the report and recommendation of the investigating
prosecutor, without personally determining probable cause by independently examining sufficient evidence
submitted by the parties during the preliminary investigation?

The Case

This is the main question raised in these two consolidated petitions for certiorari under Rule 65 of the Rules of
Court challenging the Sandiganbayan's August 25, 1992 Resolution 1 which answered the said query in the
affirmative.

The Facts

Both petitions have the same factual backdrop. On August 8, 1991, the Anti-Graft League of the Philippines,
represented by its chief prosecutor and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the
Ombudsman a complaint 2 against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and
106678, respectively), Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoño. The complaint was for
alleged violation of Section 3 (g) of Republic Act 3019 3 prohibiting a public officer from entering into any contract or
transaction on behalf of the government if it is manifestly and grossly disadvantageous to the latter, whether or not
the public officer profited or will profit thereby. After due notice, all respondents therein filed their respective
counter-affidavits with supporting documents. On January 8, 1992, Graft Investigation Officer Titus P. Labrador
(hereafter, "GIO Labrador") submitted his resolution 4 with the following recommendations:

WHEREFORE, all premises considered, it is respectfully recommended that an information for

violation of Section 3 (g) of R.A. 3019 as amended be filed against respondent Rolando S. Narciso
before the Sandiganbayan.

It is likewise recommending that the case against the other respondents be DISMISSED for
insufficiency of evidence.

However, after a review of the above resolution, Special Prosecution Officer Leonardo P. Tamayo (hereafter "SPO
Tamayo") recommended that
both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A. 3019. The resolution
of GIO Labrador, as modified by the memorandum 5 of SPO Tamayo, was approved by Ombudsman Conrado M.
Vasquez on May 5, 1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan in an
information 6 filed on May 18, 1992. Attached to the information were the resolution of GIO Labrador and the
memorandum of SPO Tamayo. The said information reads:

The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses
ROLANDO NARCISO and DORIS TERESA HO, President of National Marine Corporation, of
violation of Section 3(e) of RA 3019, as amended, committed as follows:
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That on or about April 4, 1989, and for sometime prior and/or subsequent thereto,
in the City of Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused ROLANDO NARCISO, a public officer, being then the
Vice-President of the National Steel Corporation (NSC), a government-owned or
controlled corporation organized and operating under the Philippine laws, and
DORIS TERESA HO, a private individual and then the President of National
Marine Corporation (NMC), a private corporation organized and operating under
our Corporation law, conspiring and confederating with one another, did then and
there wilfully, unlawfully and criminally, with evident bad faith and through manifest
partiality, cause undue injury to the National Steel Corporation (NSC), by entering
without legal justification into a negotiated contract of affreightment
disadvantageous to the NSC for the haulage of its products at the rate of
P129.50/MT, from Iligan City to Manila, despite their full knowledge that the rate
they have agreed upon was much higher than those offered by the Loadstar
Shipping Company, Inc. (LSCI) and Premier Shipping Lines, Inc. (PSLI), in the
amounts of P109.56 and P123.00 per Metric Ton, respectively, in the public
bidding held on June 30, 1988, thereby giving unwarranted benefits to the National
Marine Corporation, in the total sum of One Million One Hundred Sixteen
Thousand Fifty Two Pesos and Seventy Five Centavos (P1,116,052.75), Philippine
Currency, to the pecuniary damage and prejudice of the NSC in the aforestated
sum. The said offense was committed by Rolando S. Narciso in the performance
of his official functions as Vice-President of the National Steel Corporation.

CONTRARY TO LAW.

Acting on the foregoing information, the Sandiganbayan issued the now questioned warrant of arrest against
Petitioners Ho and Narciso. Petitioner Ho initially questioned the issuance thereof in an "Urgent Motion to Recall
Warrant of Arrest/Motion for Reconsideration" which was adopted by Petitioner Narciso. They alleged that the
Sandiganbayan, in determining probable cause for the issuance of the warrant for their arrest, merely relied on the
information and the resolution attached thereto, filed by the Ombudsman without other supporting evidence, in
violation of the requirements of Section 2, Article III of the Constitution, and settled jurisprudence. Respondent
Sandiganbayan denied said motion in the challenged Resolution. It ratiocinated in this wise.

Considering, therefore, that this Court did not rely solely on the certification appearing in the
information in this case in the determination of whether probable cause exists to justify the
issuance of the warrant of arrest but also on the basis predominantly shown by the facts and
evidence appearing in the resolution/memorandum of responsible investigators/prosecutors, then
the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient in form and substance based on the
facts and evidence adduced by both parties during preliminary investigation. To require this Court
to have the entire record of the preliminary investigation to be produced before it, including the
evidence submitted by the complainant and the accused-respondents, would appear to be an
exercise in futility.

Thus, these petitions.

The Issue

Petitioner Ho raises this sole issue:

May a judge determine probable cause and issue [a] warrant of arrest solely on the basis of the
resolution of the prosecutor (in the instant case, the Office of the Special Prosecutor of the
Ombudsman) who conducted the preliminary investigation, without having before him any of the
evidence (such as complainant's affidavit, respondent's counter-affidavit, exhibits, etc.) which may
have been submitted at the preliminary investigation? 7

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In his separate petition, Rolando S. Narciso adopts the foregoing and raised no other distinct issue.

Petitioners Ho and Narciso similarly contend that a judge, in personally determining the existence of probable
cause, must have before him sufficient evidence submitted by the parties, other than the information filed by the
investigating prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such evidence
should not be "merely described in a prosecutor's resolution." Citing People vs. Inting, 8 petitioners insist that the
judge "must have before him 'the report, the affidavits, the transcripts of stenographic notes (if any), and all other
supporting documents which are material in assisting the judge to make his determination.'"

The Court's Ruling

The petitions are meritorious.

The pertinent provision of the Constitution reads:

Sec. 2 [Article III]. 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. (Emphasis supplied.)

In explaining the object and import of the aforequoted constitutional mandate, particularly the power and the
authority of judges to issue warrants of arrest, the Court elucidated in Soliven vs. Makasiar  9:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge
to satisfy himself of 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
examined 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. 10[emphasis supplied]

We should stress that the 1987 Constitution requires the judge to determine probable cause "personally." The word
"personally" does not appear in the corresponding provisions of our previous Constitutions. This emphasis shows
the present Constitution's intent to place a greater degree of responsibility upon trial judges than that imposed
under the previous Charters.

While affirming Soliven, People vs. Inting  11 elaborated on what "determination of probable cause" entails,
differentiating the judge's object or goal from that of the prosecutor's.

First, the determination of probable cause is a function of the Judge. It is not for the Provincial
Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge
alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists
him to make the determination of probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual.
It is the report, the affidavits the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutor's certification which are material in assisting the Judge to
make his determination.

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And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should be held for trial or released. Even if the two
inquiries are conducted in the course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable cause for the warrant of arrest is
made by the Judge. The preliminary investigation proper — whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore, whether or not
he should be subjected to the expense, rigors and embarrassment of trial — is the function of the
Prosecutor. 12

And clarifying the statement in People vs. Delgado 13 — that the "trial court may rely on the resolution of the
COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor
who conducted the preliminary investigation, in the issuance of the warrant of arrest" — this Court underscored
in Lim Sr. vs. Felix  14 that "[r]eliance on the COMELEC resolution or the Prosecutor's certification presupposes that
the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the
certification or resolution because the records of the investigation sustain the recommendation." We added, "The
warrant issues not on the strength of the certification standing along but because of the records which sustain it."
Summing up, the Court said:

We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine
the complainant and his witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the
Judge's examination should be. The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed
as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for [the] complainant and
[the] witnesses themselves to answer the court's probing questions when the circumstances of the
case so require. 15 [emphasis supplied]

The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado vs. Diokno 16 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. 17 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." 18 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. 19 In Webb vs. De Leon, 20 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.

In the recent case of Roberts Jr. vs. Court of Appeals, 21 this Court's application of the dictum laid down in Soliven
— affirmed and fortified in Inting, Lim Sr., Allado and Webb — should lay to rest the issue raised in the instant
petitions. In Robets Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order of the respondent
judge directing inter alia the issuance of warrants of arrest against the accused, reasoning that said judge did not
personally determine the existence of probable cause, since he had "only the information, amended information,
and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor's finding
of probable cause."

In like manner, herein Respondent Sandiganbayan had only the information filed by the Office of the Ombudsman,
the thirteen-page resolution of the investigating officer and the three-page memorandum of the prosecution officer,
when it issued the warrant of arrest against the petitioners. The latter two documents/reports even had dissimilar
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recommendations — the first indicting only Petitioner Narciso, the second including Petitioner Ho. This alone
should have prompted the public respondent to verify, in the records and other documents submitted by the parties
during the preliminary investigation, whether there was sufficient evidence to sustain the Ombudsman's action
charging both petitioners with violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of
the warrant, the Sandiganbayan simply said:

JUSTICE ESCAREAL:

xxx xxx xxx

But in this particular case we believe there is prima facie case based on our examination of the
resolution because we believe, we think the Ombudsman will not approve a resolution just like that,
without evidence to back it up. 22

In attempting to further justify its challenged action, the public respondent explained in its assailed Resolution.

In the instant case, there are attached to the information, two (2) Memorandum/Resolution (sic)
emanating from the Offices of the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19,
respectively, Record) which clearly and indubitably established,  firstly, the conduct of a due and
proper preliminary investigation, secondly, the approval by proper officials clothed with statutory
authority; and thirdly, the determination and ascertainment of probable caused based on the
documentary evidence submitted by the complainant (Anti-Graft League of the Philippines),
foremost among which is the Contract of Affreightment entered into between National Steel
Corporation (NSC), and National Marine Corporation (NMC) and the COA-NSC audit report,
together with the counter-affidavits of accused Rolando Narciso and NMC officials, among whom is
accused-movant. Outlined in detail in the aforesaid Resolution of Titus P. Labrador, Graft
Investigation Officer II, which was reviewed by Attys. Romeo I. Tan and Arturo Mojica, Director,
Community Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the facts
leading to the questioned transaction between NSC and NMC, together with an evaluation of the
propriety and legality of the bidding process involved therein and which revealed that there were
supposed non-compliance with proper bidding procedures. GIO Labrador's findings and
recommendations, extensively set out in his thirteen-page resolution, is complemented by the
three-page Memorandum of Special Prosecution Officer II Leonardo P. Tamayo, both of which
meticulously delved into the merits and demerits of the evidence presented by the complainant and
accused-respondents and which resulted in their respective recommendation which led the
Honorable Conrado M. Vasquez to approve the recommendations of Deputy Special

Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A. Desierto for the filling of the
information in the case at bar.

xxx xxx xxx

Considering, therefore, that this Court did not rely solely on the certification appearing in the
information in this case in the determination of whether probable cause exists to justify the
issuance of the warrant of arrest but also on the basis predominantly shown by the facts and
evidence appearing in the resolution/memorandum of responsible investigators/prosecutors, then
the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient in form and substance based on the
facts and evidence adduced by both parties during the preliminary investigation. To require this
Court to have the entire record of the preliminary investigation to be produced before it, including
the evidence submitted by the complainant and the accused-respondents, would appear to be an
exercise in futility. 23

In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we
only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause

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by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable
ground to believe that the accused is guilty of the offense charged and should be held for trial is what the
prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued
against the accused, i.e. whether there is a necessity for placing him under immediate custody in order not to
frustrate the ends of justice. 24 Thus, even if both should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the 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 of an offense and
hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other
thanthe prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence)
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. 25

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. 26 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 sufficientsupporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of
witnesses or transcripts 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 personallydetermine 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.

True, in Webb vs. De Leon, we found that "the painstaking recital and analysis of the parties' evidence made in the
DOJ Panel Report satisfied both judges that there [was] probable cause to issue warrants of arrest against
petitioners." This statement may have been wrongly construed by the public respondent to mean that the narration
or description of portions of the evidence in the prosecutor's report may serve as sufficient basis to make its own
independent judgment. What it should bear in mind, however, is that, aside from the 26-page report of the DOJ
panel, the sworn statements of three witnesses and counter-affidavits of the petitioners in Webb were also
submitted to the trial court, and the latter is presumed to have reviewed these documents as well, prior to its
issuance of the warrants of arrest.

In the instant case, the public respondent relied fully and completely upon the resolution of the graft investigation
officer and the memorandum of the reviewing prosecutor, attached to the information filed before it, and its
conjecture that the Ombudsman would not have approved their recommendation without supporting evidence. It
had no other documents from either the complainant (the Anti-Graft League of the Philippines) or the People from
which to sustain its own conclusion that probable cause exists. Clearly and ineluctably, Respondent Court's findings
of "the conduct of a due and proper preliminary investigation" and "the approval by the proper officials clothed with
statutory authority" are not equivalent to the independent and personal responsibility required by the Constitution
and settled jurisprudence. At least some of the documentary evidence mentioned (Contract of Affreightment
between National Steel Corporation and National Marine Corporation, the COA-NSC audit report, and counter-
affidavits of Rolando Narciso and NMC officials), upon which the investigating officials of the Ombudsman
reportedly ascertained the existence of probable cause, should have been physically present before the public
respondent for its examination, to enable it to determine on its own whether there is substantial evidence to support
the finding of probable cause. But is stubbornly stood pat on its position that it had essentially complied with its
responsibility. Indisputably, however, the procedure it undertook contravenes the Constitution and settled
jurisprudence. Respondent Court palpably committed grave abuse of discretion in ipso facto issuing the challenged

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warrant of arrest on the sole basis of the prosecutor's findings and recommendation, and without determining on its
own the issue of probable cause based on evidence other than such bare findings and recommendation.

WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET ASIDE. The warrant issued by the
Sandiganbayan (Second Division) on May 20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho
and Rolando Narciso is hereby declared NULL AND VOID.

SO ORDERED.

16. Quisay v. People of the Philippines, January 13, 2016

January 13, 2016

G.R. No. 216920

GIRLIE M. QUISAY, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated October 10, 2014 and the Resolution3 dated
January 30, 2015 of the Court of Appeals (CA) in CA-G.R. SP No. 131968, which affirmed the denial of petitioner
Girlie M. Quisay's (petitioner) Motion to Quash before the Regional Trial Court of Makati, Branch 144 (RTC).

The Facts

On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP-Makati) issued a Pasiya4 or
Resolution finding probable cause against petitioner for violation of Section 10 of Republic Act No. (RA)
7610,5otherwise known as the "Special Protection of Children Against Abuse Exploitation and Discrimination Act."
Consequently, a Pabatid Sakdal6 or Information was filed before the RTC on January 11, 2013 charging petitioner
of such crime.

On April 12, 2013, petitioner moved for the quashal of the Information against her on the ground of lack of authority
of the person who filed the same before the RTC. In support of her motion, petitioner pointed out that
the Pasiya  issued by the OCP-Makati was penned by Assistant City Prosecutor Estefano H. De La Cruz (ACP De
La Cruz) and approved by Senior Assistant City Prosecutor Edgardo G. Hirang (SACP Hirang), while the Pabatid
Sakdal was penned by ACP De La Cruz, without any approval from any higher authority, albeit with a Certification
claiming that ACP De La Cruz has prior written authority or approval from the City Prosecutor in filing the said
Information. In this regard, petitioner claimed that nothing in the aforesaid Pasiya and Pabatid Sakdal would show
that ACP De La Cruz and/or SACP Hirang had prior written authority or approval from the City Prosecutor to file or
approve the filing of the Information against her. As such, the Information must be quashed for being tainted with a
jurisdictional defect that cannot be cured.7

In its Comment and Opposition,8 the OCP-Makati countered that the review prosecutor, SACP Hirang, was
authorized to approve the Pasiya pursuant to OCP-Makati Office Order No. 32.9 Further, it maintained that
the Pabatid Sakdal was filed with the prior approval of the City Prosecutor as shown in the Certification in the
Information itself.10

The RTC Ruling

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In an Order11 dated May 8, 2013, the RTC denied petitioner's motion to quash for lack of merit. It found the
Certification attached to the Pabatid Sakdal to have sufficiently complied with Section 4, Rule 112 of the Rules of
Court which requires the prior written authority or approval by, among others, the City Prosecutor, in the filing of
Informations.12

Petitioner moved for reconsideration,13 which was, however, denied in an Order14 dated July 10, 2013. Aggrieved,
petitioner elevated the matter to the CA via  a petition for certiorari.15

The CA Ruling

In a Decision16 dated October 10, 2014, the CA affirmed the RTC ruling. It held that pursuant to Section 9 of RA
10071,17 otherwise known as the "Prosecution Service Act of 201 O," as well as OCP-Makati Office Order No. 32,
the City Prosecutor of Makati authorized SACP Hirang to approve the issuance of, inter alia,  resolutions finding
probable cause and the filing of Informations before the courts. As such, SACP Hirang may, on behalf of the City
Prosecutor, approve the Pasiya  which found probable cause to indict petitioner of violation of Section 10 of RA
7610.18

Further, it held that the Certification made by ACP De La Cruz in the Pabatid Sakdal  clearly indicated that the same
was filed after the requisite preliminary investigation and with the prior written authority or approval of the City
Prosecutor. In this regard, the CA opined that such Certification enjoys the presumption of regularity accorded to a
public officer's performance of official functions, in the absence of convincing evidence to the contrary. 19

Undaunted, petitioner moved for reconsideration,20 but was denied in a Resolution21 dated January 30, 2015;
hence, this petition.

The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly held that the R TC did not gravely abuse
its discretion in dismissing petitioner's motion to quash.

The Court's Ruling

The petition is meritorious.

Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that the filing of a complaint or
information requires a prior written authority or approval of the named officers therein before a complaint or
information may be filed before the courts, viz.:

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

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan  in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties of such action.1âwphi1

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.

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x x x x (Emphases and underscoring supplied)

Thus, as a general rule, complaints or informations filed before the courts without the prior written authority or
approval of the foregoing authorized officers renders the same defective and, therefore, subject to quashal pursuant
to Section 3 (d), Rule 11 7 of the same Rules, to wit:

SECTION 3. Grounds. - The accused may move to quash the complaint or information on any of the following
grounds:

xxxx

(d) That the officer who filed the information had no authority to do so;

x x x x (Emphasis and underscoring supplied)

In this relation, People v. Garfin22 firmly instructs that the filing of an Information by an officer without the requisite
authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence, waiver,
acquiescence, or even by express consent. Hence, such ground may be raised at any stage of the proceedings. 23

In the case at bar, the CA affirmed the denial of petitioner's motion to quash on the grounds that: (a)  the City
Prosecutor ofMakati may delegate its authority to approve the filing of the Pabatid Sakdal pursuant to Section 9 of
RA 10071, as well as OCP-Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a Certification stating
that its filing before the RTC was with the prior written authority or approval from the City Prosecutor.

The CA correctly held that based on the wordings of Section 9 of RA 10071, which gave the City Prosecutor the
power to "[i]nvestigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of
penal laws and ordinances within their respective jurisdictions, and have the necessary information or
complaint prepared or made and filed  against the persons accused,"24 he may indeed delegate his power to his
subordinates as he may deem necessary in the interest of the prosecution service. The CA also correctly stressed
that it is under the auspice of this provision that the City Prosecutor of Makati issued OCP-Makati Office Order No.
32, which gave division chiefs or review prosecutors "authority to approve or act on any resolution, order, issuance,
other action, and any information recommended by any prosecutor for approval," 25 without necessarily diminishing
the City Prosecutor's authority to act directly in appropriate cases. 26 By virtue of the foregoing issuances, the City
Prosecutor validly designated SACP Hirang, Deputy City Prosecutor Emmanuel D. Medina, and Senior Assistant
City Prosecutor William Celestino T. Uy as review prosecutors for the OCP-Makati. 27

In this light, the Pasiya or Resolution finding probable cause to indict petitioner of the crime charged, was validly
made as it bore the approval of one of the designated review prosecutors for OCP-Makati, SACP Hirang, as
evidenced by his signature therein.

Unfortunately, the same could not be said of the Pabatid Sakdal  or Information filed before the RTC, as there was
no showing that it was approved by either the City Prosecutor of Makati or any of the OCPMakati' s division chiefs
or review prosecutors. All it contained was a Certification from ACP De La Cruz which stated, among others,
that "DAGDAG KO PANG PINATUTUNAYAN na ang paghahain ng sakdal na ito ay may nakasulat na naunang
pahintulot o pagpapatibay ng Panlunsod na Taga-Usig" 28 - which translates to "and that the filing of the Information
is with the prior authority and approval of the City Prosecutor."

In the cases of People v. Garfin,29  Turingan v. Garfin,30 and Tolentino v. Paqueo,31 the Court had already rejected
similarly-worded certifications, uniformly holding that despite such certifications, the Informations were defective as
it was shown that the officers filing the same in court either lacked the authority to do so or failed to show that they
obtained prior written authority from any of those authorized officers enumerated in Section 4, Rule 112 of the 2000
Revised Rules of Criminal Procedure.

Here, aside from the bare and self-serving Certification, there was no proof that ACP De La Cruz was authorized to
file the Pabatid Sakdal  or Information before the RTC by himself. Records are bereft of any showing that the City
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Prosecutor of Makati had authorized ACP De La Cruz to do so by giving him prior written authority or by
designating him as a division chief or review prosecutor of OCP-Makati. There is likewise nothing that would
indicate that ACP De La Cruz sought the approval of either the City Prosecutor or any of those authorized pursuant
to OCP-Makati Office Order No. 32 in filing the Pabatid Sakdal. Quite frankly, it is simply baffling how ACP De La
Cruz was able to have the Pasiya  approved by designated review prosecutor SACP Hirang but failed to have
the Pabatid Sakdal approved by the same person or any other authorized officer in the OCP-Makati.

In view of the foregoing circumstances, the CA erred in according the Pabatid Sakdal the presumption of regularity
in the performance of official functions solely on the basis of the Certification made by ACP De La Cruz considering
the absence of any evidence on record clearly showing that ACP De La Cruz: (a) had any authority to file the same
on his own; or (b)  did seek the prior written approval from those authorized to do so before filing the Information
before the RTC.

In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion to quash as the Pabatid
Sakdal or Information suffers from an incurable infirmity - that the officer who filed the same before the RTC had no
authority to do so. Hence, the Pabatid Sakdal  must be quashed, resulting in the dismissal of the criminal case
against petitioner.

As a final note, it must be stressed that "[t]he Rules of Court governs the pleading, practice, and procedure in all
courts of the Philippines. For the orderly administration of justice, the provisions contained therein should be
followed by all litigants, but especially by the prosecution arm of the Govemment." 32

WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014 and the Resolution dated January
30, 2015 of the Court of Appeals in CA-G.R. SP No. 131968 are hereby REVERSED and SET ASIDE. Accordingly,
the Information against petitioner Girlie M. Quisay is QUASHED and the criminal case against her is DISMISSED.

SO ORDERED.

17. ABS CBN Corp. v. Gozon, et. al, March 11, 2015

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 195956               March 11, 2015

ABS-CBN CORPORATION, Petitioner, 
vs.
FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L. FLORES, JESSICA A. SORO, GRACE DELA PENA-
REYES, JOHN OLIVER T. MANALASTAS, JOHN DOES AND JANE DOES, Respondents.

DECISION

LEONEN, J.:

The main issue in this case is whether there is probable cause to charge respondents with infringement
under Republic Act No. 8293, otherwise known as the Intellectual Property Code. The resolution of this
issue requires clarification of the concept of "copyrightable material" in relation to material that is
rebroadcast live as a news story. We are also asked to rule on whether criminal prosecution for
infringement of copyrightable material, such as live rebroadcast, can be negated by good faith.

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ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on Certiorari 1 to assail the November 9, 2010
Decision2 and the March 3, 2011 Resolution3 of the Court of Appeals. The Court of Appeals reinstated the
Department of Justice Resolution dated August 1, 2005 that ordered the withdrawal of the Information finding
probable cause for respondents’ violation of Sections 177 4 and 2115 of the Intellectual Property
Code.6 Respondents are officers and employees of GMA Network, Inc. (GMA-7). They are: Felipe Gozon (Gozon),
GMA-7 President; Gilberto R. Duavit, Jr. (Duavit, Jr.), Executive Vice-President; Marissa L. Flores (Flores), Vice-
President for New and Public Affairs; Jessica A. Soho (Soho), Director for News; Grace Dela Peña-Reyes (Dela
Peña-Reyes), Head of News and Public Affairs; John Oliver Manalastas (Manalastas), Program Manager; and
others.

The controversy arose from GMA-7’s news coverage on the homecoming of Filipino overseas worker and
hostage victim Angelo dela Cruz on July 22, 2004. As summarized by the Court of Appeals:

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

ABS-CBN "conducted live audio-video coverage of and broadcasted the arrival of Angelo dela Cruz at the
Ninoy Aquino International Airport (NAIA) and the subsequent press conference." 8 ABS-CBN allowed
Reuters Television Service (Reuters) to air the footages it had taken earlier under a special embargo
agreement.9

ABS-CBN alleged that under the special embargo agreement, any of the footages it took would be for the
"use of Reuter’s international subscribers only, and shall be considered and treated by Reuters under
‘embargo’ against use by other subscribers in the Philippines. . . . [N]o other Philippine subscriber of
Reuters would be allowed to use ABS-CBN footage without the latter’s consent." 10

GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Peña-Reyes, and Manalastas are connected, "assigned
and stationed news reporters and technical men at the NAIA for its live broadcast and non-live news coverage of
the arrival of dela Cruz."11 GMA-7 subscribes to both Reuters and Cable News Network (CNN). It received a
live video feed of the coverage of Angelo dela Cruz’s arrival from Reuters. 12

GMA-7 immediately carried the live news feed in its program "Flash Report," together with its live
broadcast.13Allegedly, GMA-7 did not receive any notice or was not aware that Reuters was airing footages
of ABS-CBN.14 GMA-7’s news control room staff saw neither the "No Access Philippines" notice nor a
notice that the video feed was under embargo in favor of ABS-CBN. 15

On August 13, 2004, ABS-CBN filed the Complaint for copyright infringement under Sections 177 16 and
21117 of the Intellectual Property Code.18

On December 3, 2004, Assistant City Prosecutor Dindo Venturanza issued the Resolution 19 finding probable
cause to indict Dela Peña-Reyes and Manalastas.20 Consequently, the Information21 for violation of the
Intellectual Property Code was filed on December 17, 2004. It reads:

That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-named accused, conspiring
together, confederating with and mutually helping each other, being the Head of News Operations and the Program
Manager, respectively, for the News and Public Affairs Department of GMA Network, Inc., did then and there,
willfully, unlawfully and feloniously use and broadcast the footage of the arrival of Angelo [d]ela Cruz at the Ninoy
Aquino International Airport of which ABS-CBN holds the exclusive ownership and copyright by then and there
using, airing, and broadcasting the said footage in its news program "FLASH REPORT" without first obtaining the
consent or authority of said copyright owner, to their damage and prejudice.

Contrary to law.22

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On January 4, 2005, respondents filed the Petition for Review before the Department of Justice. 23 In the
Resolution (Gonzalez Resolution) dated August 1, 2005, Department of Justice Secretary Raul M. Gonzalez
(Secretary Gonzalez) ruled in favor of respondents and held that good faith may be raised as a defense in
the case.24 The dispositive portion of the Resolution reads:

WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No. 04-10458 is considered meritorious
and is hereby GRANTED. This case is hereby Dismissed, the resolution of the City Prosecutor of Quezon City is
hereby reversed and the same is ordered to withdraw the information if any and report action taken to this office
within ten (10) days.25 (Emphasis in the original)

Both parties moved for reconsideration of the Gonzalez Resolution. 26

Meanwhile, on January 19, 2005, the trial court granted the Motion to Suspend Proceedings filed earlier by
Dela Peña-Reyes and Manalastas.27 The trial court Order reads:

Perusing the motion, the court finds that a petition for review was filed with the Department of Justice on
January 5, 2005 as confirmed by the public prosecutor. Under Section 11 (c), Rule 116 of the Rules of
Criminal Procedure, once a petition for review is filed with the Department of Justice, a suspension of the
criminal proceedings may be allowed by the court.

Accordingly, to allow the Department of Justice the opportunity to act on said petition for review, let the
proceedings on this case be suspended for a period of sixty (60) days counted from January 5, 2005, the
date the petition was filed with the Department of Justice. The arraignment of the accused on February 1,
2005 is accordingly cancelled. Let the arraignment be rescheduled to March 8, 2005 at 8:30 a.m. The
accused through counsel are notified in open court.

SO ORDERED.28

On June 29, 2010, Department of Justice Acting Secretary Alberto C. Agra (Secretary Agra) issued the
Resolution (Agra Resolution) that reversed the Gonzalez Resolution and found probable cause to charge
Dela Peña-Reyes and Manalastas for violation of the Intellectual Property Code. 29 Secretary Agra also found
probable cause to indict Gozon, Duavit, Jr., Flores, and Soho for the same violation. 30 He ruled that:

[w]hile good faith may be a defense in copyright infringement, the same is a disputable presumption that must be
proven in a full-blown trial. Disputable presumptions may be contradicted and overcome by other evidence. Thus, a
full-blown trial is the proper venue where facts, issues and laws are evaluated and considered. The very purpose of
trial is to allow a party to present evidence to overcome the disputable presumptions involved. 31

The dispositive portion of the Agra Resolution provides:

WHEREFORE, premises considered:

(a) The Motion for Reconsideration filed by appellees ABS-CBN Broadcasting Corporation (ABS-CBN) of
our Resolution promulgated on August 1, 2005 (Resolution No. 364, Series of 2005) and the Petition for
Review filed by complainant-appellant ABS-CBN in I.S. No. 04-10458 on April10, 2006, are GRANTED and
the City Prosecutor of Quezon City is hereby ordered to file the necessary Information for violation of
Section 177 and 211 of Republic Act No. 8293 against GMA-7. Felipe L. Gozon, Gilberto R. Duavit, Jr.,
Marissa L.Flores, Jessica A. Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]

....

SO ORDERED.32 (Emphasis in the original)

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Respondents assailed the Agra Resolution through the Petition for Certiorari with prayer for issuance of a
temporary restraining order and/or Writ of Preliminary Injunction on September 2, 2010 before the Court of
Appeals. In the Resolution dated September 13, 2010, the Court of Appeals granted the temporary
restraining order preventing the Department of Justice from enforcing the Agra Resolution. 33

On November 9, 2010, the Court of Appeals rendered the Decision granting the Petition and reversing and
setting aside the Agra Resolution.34 The Court of Appeals held that Secretary Agra committed errors of
jurisdiction in issuing the assailed Resolution. Resolving the issue of copyright infringement, the Court of
Appeals said:

Surely, private respondent has a copyright of its news coverage. Seemingly, for airing said video feed, petitioner
GMA is liable under the provisions of the Intellectual Property Code, which was enacted purposely to protect
copyright owners from infringement. However, it is an admitted fact that petitioner GMA had only aired a five (5)
second footage of the disputed live video feed that it had received from Reuters and CNN as a subscriber. Indeed,
petitioners had no notice of the right of ownership of private respondent over the same. Without notice of the "No
Access Philippines" restriction of the live video feed, petitioner cannot be faulted for airing a live video feed from
Reuters and CNN.

Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of petitioners in airing the
five (5) second footage was undeniably attended by good faith and it thus serves to exculpate them from
criminal liability under the Code. While the Intellectual Property Code is a special law, and thus generally
categorized as malum prohibitum, it bears to stress that the provisions of the Code itself do not ipso facto penalize
a person or entity for copyright infringement by the mere fact that one had used a copyrighted work or material.

Certainly so, in the exercise of one’s moral and economic or copyrights, the very provisions of Part IV of the
Intellectual Property Code provide for the scope and limitations on copyright protection under Section 184 and in
fact permit fair use of copyrighted work under Section 185. With the aforesaid statutory limitations on one’s
economic and copyrights and the allowable instances where the other persons can legally use a copyrighted work,
criminal culpability clearly attaches only when the infringement had been knowingly and intentionally
committed.35 (Emphasis supplied)

The dispositive portion of the Decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby GRANTED and the assailed
Resolution dated 29 June 2010 REVERSED and SET ASIDE. Accordingly, the earlier Resolution dated 1
August 2005, which ordered the withdrawal of the Information filed, if any, against the petitioners for
violation of Sections 177 and 211 of the Intellectual Property Code, is hereby REINSTATED. No costs.

SO ORDERED.36 (Emphasis in the original)

ABS-CBN’s Motion for Reconsideration was denied.37 It then filed its Petition for Review before this court
assailing the Decision and Resolution of the Court of Appeals. 38

The issues for this court’s consideration are:

First, whether Secretary Agra committed errors of jurisdiction in the Resolution dated June 29, 2010 and, therefore,
whether a petition for certiorari was the proper remedy in assailing that Resolution;

Second, whether news footage is copyrightable under the law;

Third, whether there was fair use of the broadcast material;

Fourth, whether lack of knowledge that a material is copyrighted is a defense against copyright infringement;

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Fifth, whether good faith is a defense in a criminal prosecution for violation of the Intellectual Property Code; and

Lastly, whether the Court of Appeals was correct in overturning Secretary Agra’s finding of probable cause.

The trial court granted respondents’ Motion to Suspend Proceedings and deferred respondents Dela Peña-Reyes
and Manalastas’ arraignment for 60 days in view of the Petition for Review filed before the Department of Justice.

Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows the suspension of the accused’s arraignment in
certain circumstances only:

SEC. 11. Suspension of arraignment.–Upon motion by the proper party, the arraignment shall be suspended in the
following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him
unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court
shall order his mental examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or
the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted
from the filing of the petition with the reviewing office. (12a) (Emphasis supplied)

In Samson v. Daway,39 this court acknowledged the applicability of Rule 116, Section (c) in a criminal
prosecution for infringement under the Intellectual Property Code. However, this court emphasized the
limits of the order of deferment under the Rule:

While the pendency of a petition for review is a ground for suspension of the arraignment, the . . . provision
limits the deferment of the arraignment to a period of 60 days reckoned from the filing of the petition with
the reviewing office. It follows, therefore, that after the expiration of said period, the trial court is bound to
arraign the accused or to deny the motion to defer arraignment. 40

We clarify that the suspension of the arraignment should always be within the limits allowed by law. In
Crespo v. Judge Mogul,41 this court outlined the effects of filing an information before the trial court, which
includes initiating a criminal action and giving this court "authority to hear and determine the case": 42

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.

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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.43 (Emphasis supplied, citations omitted)

The doctrine in Crespo was reiterated in Mayor Balindong v. Court of Appeals, 44 where this court reminded the
Department of Justice Secretary to refrain from entertaining petitions for review when the case is already pending
with this court:

[I]n order to avoid a situation where the opinion of the Secretary of Justice who reviewed the action of the fiscal may
be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed
in the Court. The matter should be left entirely for the determination of the Court. 45

The trial court should have proceeded with respondents Dela Peña-Reyes and Manalastas’ arraignment after the
60-day period from the filing of the Petition for Review before the Department of Justice on March 8, 2005. It was
only on September 13, 2010 that the temporary restraining order was issued by the Court of Appeals. The trial court
erred when it did not act on the criminal case during the interim period. It had full control and direction of the case.
As Judge Mogul reasoned in denying the motion to dismiss in Crespo, failure to proceed with the arraignment
"disregards the requirements of due process [and] erodes the Court’s independence and integrity." 46

II

According to ABS-CBN, the Court of Appeals erred in finding that: a motion for reconsideration was not necessary
before a petition for certiorari could be filed; the Department of Justice Secretary committed errors of jurisdiction
since the Agra Resolution was issued within its authority and in accordance with settled laws and jurisprudence;
and respondents were not liable for copyright infringement.

In its assailed Decision, the Court of Appeals found that respondents committed a procedural error when they failed
to file a motion for reconsideration before filing the Petition for Certiorari. However, the Court of Appeals held that a
motion for reconsideration was unnecessary since the Agra Resolution was a patent nullity and it would have been
useless under the circumstances: Given that a reading of the assailed Resolution and the instant records readily
reveals errors of jurisdiction on the part of respondent Secretary, direct judicial recourse is warranted under the
circumstances. Aside from the fact that said Resolution is a patent nullity having been issued in grave abuse of
discretion amounting to lack or excess of jurisdiction, the filing of a motion for reconsideration is evidently useless
on account of the fact that the issues and arguments before this Court have already been duly raised and
accordingly delved into by respondent Secretary in his disposition of the petition a quo. 47 (Emphasis in the original)
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In Elma v. Jacobi,48 this court ruled that a petition for certiorari under Rule 65 of the Rules of Court is proper when
assailing adverse resolutions of the Department of Justice stemming from the determination of probable
cause.49However, grave abuse of discretion must be alleged.50

In Sanrio Company Limited v. Lim,51 this court stressed the prosecutor’s role in determining probable cause.
Judicial review will only lie when it is shown that the prosecutor acted with grave abuse of discretion amounting to
lack or excess of jurisdiction:

A prosecutor alone determines the sufficiency of evidence that will establish probable cause justifying the filing of a
criminal information against the respondent. By way of exception, however, judicial review is allowed where
respondent has clearly established that the prosecutor committed grave abuse of discretion. Otherwise stated, such
review is appropriate only when the prosecutor has exercised his discretion in an arbitrary, capricious, whimsical or
despotic manner by reason of passion or personal hostility, patent and gross enough to amount to an evasion of a
positive duty or virtual refusal to perform a duty enjoined by law. 52 (Citations omitted)

Grave abuse of discretion refers to:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion
must be grave as 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 law. 53

Resorting to certiorari requires that there be there be "no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law[,]"54 such as a motion for reconsideration. Generally, "a motion for reconsideration is a
condition sine qua non before a petition for certiorari may lie, its purpose being to grant an opportunity for the
[tribunal or officer] to correct any error attributed to it by a re-examination of the legal and factual circumstances of
the case."55 However, exceptions to the rule exist:

(a) where the order is a patent nullity, as where the Court a quo had no jurisdiction; (b) where the questions raised
in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those
raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of
the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e)
where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case,
relief from an order of arrest is urgent and the granting of such relief by the trial Court is improbable; (g) where the
proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex parte or in
which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public
interest is involved.56(Emphasis in the original, citations omitted)

As argued by respondents, "[a] second motion for reconsideration would have been useless and futile since the
D[epartment] [of] J[ustice] had already passed upon the same issues twice." 57 Equally pressing under the
circumstances was the need to resolve the matter, as the Information’s filing would lead to respondents’ imminent
arrest.58

Moreover, Department of Justice Department Circular No. 70 dated July 3, 2000, or the 2000 NPS Rules on
Appeal, provides that no second motion for reconsideration of the Department of Justice Secretary’s resolution shall
be entertained:

SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration within a non-
extendible period of ten (10) days from receipt of the resolution on appeal, furnishing the adverse party and the
Prosecution Office concerned with copies thereof and submitting proof of such service. No second or further motion
for reconsideration shall be entertained.

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The Agra Resolution was the result of respondents’ Motion for Reconsideration assailing the Gonzalez Resolution.
To file a motion for reconsideration of the Agra Resolution would be superfluous. Respondents were, therefore,
correct in filing the Petition for Certiorari of the Agra Resolution before the Court of Appeals.

III

The Court of Appeals ruled that Secretary Agra committed errors of jurisdiction, which then required the grant of the
writ of certiorari:

So viewed, by ordering the filing of information without proof that probable cause exists to charge petitioners with a
crime, respondent Secretary clearly committed an error of jurisdiction thus warranting the issuance of the writ of
certiorari. Surely, probable cause cannot be had when the very provisions of the statute exculpates criminal liability
in cases classified as fair use of copyrighted materials. The fact that they admittedly used the Reuters live video
feed is not, as a matter of course, tantamount to copyright infringement that would justify the filing of an information
against the petitioners.59

Error of jurisdiction must be distinguished from error of judgment:

A line must be drawn between errors of judgment and errors of jurisdiction. An error of judgment is one which the
court may commit in the exercise of its jurisdiction. An error of jurisdiction renders an order or judgment void or
voidable. Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by appeal. 60

In People v. Hon. Sandiganbayan61:

An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of jurisdictionis
one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of
discretion, which is tantamount to lack or in excess of jurisdiction and which error is correctible only by the
extraordinary writ of certiorari. Certiorari will not be issued to cure errors of the trial court in its appreciation of the
evidence of the parties, or its conclusions anchored on the said findings and its conclusions of law. 62 (Emphasis
supplied)

This court has adopted a deferential attitude towards review of the executive’s finding of probable cause. 63 This is
based "not only upon the respect for the investigatory and [prosecutorial] powers granted by the Constitution to the
executive department but upon practicality as well." 64 Review of the Department of Justice Secretary’s decision or
resolution will be allowed only when grave abuse of discretion is alleged:

The full discretionary authority to determine probable cause in a preliminary investigation to ascertain sufficient
ground for the filing of information rests with the executive branch. Hence, judicial review of the resolution of the
Secretary of Justice is limited to a determination whether there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction. Courts cannot substitute the executive branch’s judgment.

....

It is only where the decision of the Justice Secretary is tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction that the Court of Appeals may take cognizance of the case in a petition for certiorari under
Rule 65 of the Revised Rules of Civil Procedure. The Court of Appeals decision may then be appealed to this Court
by way of a petition for review on certiorari. 65 (Emphasis supplied, citations omitted)

In this case, it must be shown that Secretary Agra exceeded his authority when he reversed the findings of
Secretary Gonzalez. This court must determine whether there is probable cause to file an information for copyright
infringement under the Intellectual Property Code.

IV

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Probable cause pertains to "such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that respondent is probably guilty thereof." 66 Preliminary investigation is the inquiry or proceeding to
determine whether there is probable cause.67

In Webb v. De Leon,68 this court ruled that determination of probable cause during preliminary investigation does
not require trial-like evaluation of evidence since existence of probable cause does not equate to guilt:

It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies
on the calculus of common sense of which all reasonable men have an abundance.

....

. . . A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. 69

In Reyes v. Pearlbank Securities, Inc.,70 finding probable cause is not equivalent to finding with moral certainty that
the accused committed the crime:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed by the suspects. It need not be based on clear and convincing evidence of guilt, not on evidence
establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt. In
determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations
of the rules of evidence of which he has no technical knowledge. He relies on common sense. 71

During preliminary investigation, a public prosecutor does not adjudicate on the parties’ rights, obligations, or
liabilities.72

In the recent case of Estrada v. Office of the Ombudsman, et al., 73 we reiterated Webb on the determination of
probable cause during preliminary investigation and traced the history of probable cause as borrowed from
American jurisprudence:

The purpose in determining probable cause is to make sure that the courts are not clogged with weak cases that
will only be dismissed, as well as to spare a person from the travails of a needless prosecution.

....

. . . In the United States, from where we borrowed the concept of probable cause, the prevailing definition of
probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De
Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this "means less than
evidence which would justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a century
ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more
than bare suspicion: Probable cause exists where "the facts and circumstances within their [the officers’] knowledge
and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S.
132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy
and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s

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protection. Because many situations which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable
men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical,
non technical conception affording the best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-
abiding citizens at the mercy of the officers’ whim or caprice.

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is
needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial. A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed by law is at least four years, two
months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a
commitment order, if the accused has already been arrested, shall be issued and that there is a necessity
of placing the respondent under immediate custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113:By a peace officer or a private person making a warrantless arrest 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

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only
upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the
Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or
probability, of guilt.74

Estrada also highlighted that a "[p]reliminary investigation is not part of the criminal action. It is merely preparatory
and may even be disposed of in certain situations." 75

To determine whether there is probable cause that respondents committed copyright infringement, a review of the
elements of the crime, including the existing facts, is required.

ABS-CBN claims that news footage is subject to copyright and prohibited use of copyrighted material is punishable
under the Intellectual Property Code. It argues that the new footage is not a "newsworthy event" but "merely an
account of the arrival of Angelo dela Cruz in the Philippines — the latter being the newsworthy event": 76

To be clear, it is the event itself or the arrival of Angelo dela Cruz which is not copyrightable because that is the
newsworthy event. However, any footage created from the event itself, in this case the arrival of Angelo dela Cruz,
are intellectual creations which are copyrightable. Thus, the footage created by ABS-CBN during the arrival of
Angelo dela Cruz, which includes the statements of Dindo Amparo, are copyrightable and protected by the laws on
copyright.77

On the other hand, respondents argue that ABS-CBN’s news footage of Angelo dela Cruz’s arrival is not
copyrightable or subject to protection:

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Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the consciousness of the Filipino
people with regard to their countrymen, OFWs working in foreign countries and how the Philippine government
responds to the issues concerning them, is "news". There is no ingenuity or inventiveness added in the said news
footage. The video footage of this "news" is not copyrightable by any legal standard as facts of everyday life
depicted in the news and items of press information is part of the public domain. 78 (Emphasis in the original)

The news footage is copyrightable.

The Intellectual Property Code is clear about the rights afforded to authors of various kinds of work. Under the
Code, "works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as
well as of their content, quality and purpose."79 These include "[a]udiovisual works and cinematographic works and
works produced by a process analogous to cinematography or any process for making audiovisual recordings." 80

Contrary to the old copyright law,81 the Intellectual Property Code does not require registration of the work to fully
recover in an infringement suit. Nevertheless, both copyright laws provide that copyright for a work is acquired by
an intellectual creator from the moment of creation.82

It is true that under Section 175 of the Intellectual Property Code, "news of the day and other miscellaneous facts
having the character of mere items of press information" are considered unprotected subject matter. 83 However, the
Code does not state that expression of the news of the day, particularly when it underwent a creative process, is
not entitled to protection.

An idea or event must be distinguished from the expression of that idea or event. An idea has been likened to a
ghost in that it "must be spoken to a little before it will explain itself." 84 It is a concept that has eluded exact legal
definition.85To get a better grasp of the idea/expression dichotomy, the etymology of the term "idea" is traced:

The word "idea" is derived from a Greek term, meaning "a form, the look or appearance of a thing as opposed to its
reality, from idein, to see." In the Timaeus, Plato saw ideas as eternal paradigms, independent objects to which the
divine demiurge looks as patterns in forming the world. This was later modified to the religious conception of ideas
as the thoughts of God. "It is not a very long step to extend the term ‘idea’ to cover patterns, blueprints, or plans in
anyone's mind, not only in God’s." The word entered the French and English vernacular in the 1600s and
possessed two meanings. The first was the Platonic meaning of a perfect exemplar or paradigm. The second,
which probably has its origin with Descartes, is of a mental concept or image or, more broadly, any object of the
mind when it is active. Objects of thought may exist independently. The sun exists (probably) before and after you
think of it. But it is also possible to think of things that have never existed, such as a unicorn or Pegasus. John
Locke defined ideas very comprehensively, to include: all objects of the mind. Language was a way of translating
the invisible, hidden ideas that make up a person’s thoughts into the external, perceptible world of articulate sounds
and visible written symbols that others can understand.86 (Citations omitted) There is no one legal definition of
"idea" in this jurisdiction. The term "idea" is mentioned only once in the Intellectual Property Code. 87 In Joaquin, Jr.
v. Drilon,88 a television format (i.e., a dating show format) is not copyrightable under Section 2 of Presidential
Decree No. 49;89 it is a mere concept:

P.D. No. 49, §2, in enumerating what are subject to copyright, refers to finished works and not to concepts. The
copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Thus, the
new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:

SEC. 175. Unprotected Subject Matter.—Notwithstanding the provisions of Sections 172 and 173, no protection
shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or
mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and
other miscellaneous facts having the character of mere items of press information; or any official text of a
legislative, administrative or legal nature, as well as any official translation thereof.

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What then is the subject matter of petitioners’ copyright? This Court is of the opinion that petitioner BJPI’s copyright
covers audio-visual recordings of each episode of Rhoda and Me, as falling within the class of works mentioned in
P.D. 49, §2(M),to wit:

Cinematographic works and works produced by a process analogous to cinematography or any process for making
audio-visual recordings;

The copyright does not extend to the general concept or format of its dating game show. Accordingly, by the very
nature of the subject of petitioner BJPI’s copyright, the investigating prosecutor should have the opportunity to
compare the videotapes of the two shows.

Mere description by words of the general format of the two dating game shows is insufficient; the presentation of
the master videotape in evidence was indispensable to the determination of the existence of probable cause. As
aptly observed by respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a whole spectrum of visuals
and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the general
copyright/format of both dating game shows.90 (Emphasis supplied, citations omitted)

Ideas can be either abstract or concrete.91 It is the concrete ideas that are generally referred to as expression:

The words "abstract" and "concrete" arise in many cases dealing with the idea/expression distinction. The Nichols
court, for example, found that the defendant’s film did not infringe the plaintiff’s play because it was "too generalized
an abstraction from what plaintiff wrote . . . only a part of her ideas." In Eichel v. Marcin, the court said that authors
may exploit facts, experiences, field of thought, and general ideas found in another’s work, "provided they do not
substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged, and put
into shape." Judge Hand, in National Comics Publications, Inc. v. Fawcett Publications, Inc. said that "no one
infringes, unless he descends so far into what is concrete as to invade. . . ‘expression.’"

These cases seem to be distinguishing "abstract" ideas from "concrete" tangible embodiments of these abstractions
that may be termed expression. However, if the concrete form of a work means more than the literal expression
contained within it, it is difficult to determine what is meant by "concrete." Webster's New Twentieth Century
Dictionary of the English Language provides several meanings for the word concrete. These include: "having a
material, perceptible existence; of, belonging to, or characterized by things or events that can be perceived by the
senses; real; actual;" and "referring to a particular; specific, not general or abstract." 92

In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated, 93 this court, citing the American case of Baker v.
Selden, distinguished copyright from patents and illustrated how an idea or concept is different from the expression
of that idea:

In the oft-cited case of Baker vs. Selden, the United States Supreme Court held that only the expression of an idea
is protected by copyright, not the idea itself. In that case, the plaintiff held the copyright of a book which expounded
on a new accounting system he had developed. The publication illustrated blank forms of ledgers utilized in such a
system. The defendant reproduced forms similar to those illustrated in the plaintiff’s copyrighted book. The US
Supreme Court ruled that:

"There is no doubt that a work on the subject of book-keeping, though only explanatory of well known systems, may
be the subject of a copyright; but, then, it is claimed only as a book. x x x But there is a clear distinction between the
books, as such, and the art, which it is, intended to illustrate. The mere statement of the proposition is so evident
that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well
as that of bookkeeping.

A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs or
watches or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing
lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the
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copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of
the book, if not pirated from other works, would be valid without regard to the novelty or want of novelty of its
subject matter. The novelty of the art or thing described or explained has nothing to do with the validity of the
copyright. To give to the author of the book an exclusive property in the art described therein, when no examination
of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of
letters patent, not of copyright. The claim to an invention of discovery of an art or manufacture must be subjected to
the examination of the Patent Office before an exclusive right therein can be obtained; and a patent from the
government can only secure it.

The difference between the two things, letters patent and copyright, may be illustrated by reference to the subjects
just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If
the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no
exclusive right to the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire such
exclusive right, he must obtain a patent for the mixture as a new art, manufacture or composition of matter. He may
copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book.
So of all other inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no
exclusive right to the modes of drawing described, though they may never have been known or used before. By
publishing the book without getting a patent for the art, the latter is given to the public.

....

Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to
convey instruction in the art, any person may practice and use the art itself which he has described and illustrated
therein. The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a
book on bookkeeping cannot secure the exclusive right to make, sell and use account books prepared upon the
plan set forth in such book. Whether the art might or might not have been patented, is a question, which is not
before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the
ruled lines and headings of accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of ideas produced
by the peculiar nature of the art described in the books, which have been made the subject of copyright. In
describing the art, the illustrations and diagrams employed happened to correspond more closely than usual with
the actual work performed by the operator who uses the art. x x x The description of the art in a book, though
entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is
explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured,
if it can be secured at all, by letters patent."94 (Emphasis supplied)

News or the event itself is not copyrightable. However, an event can be captured and presented in a specific
medium. As recognized by this court in Joaquin, television "involves a whole spectrum of visuals and effects, video
and audio."95 News coverage in television involves framing shots, using images, graphics, and sound effects. 96 It
involves creative process and originality. Television news footage is an expression of the news.

In the United States, a line of cases dwelt on the possibility of television newscasts to be copyrighted. 97 Most of
these cases focused on private individuals’ sale or resale of tapes of news broadcasts. Conflicting decisions were
rendered by its courts. Noteworthy, however, is the District Court’s pronouncement in Pacific & Southern Co. v.
Duncan,98 which involves a News Monitoring Service’s videotaping and sale of WXIA-TV’s news broadcasts:

It is axiomatic that copyright protection does not extend to news "events" or the facts or ideas which are the subject
of news reports. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir. 1981); Wainwright Securities,
Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54
L.Ed.2d 759 (1978). But it is equally well-settled that copyright protection does extend to the reports themselves, as
distinguished from the substance of the information contained in the reports. Wainwright, 558 F.2d at 95;
International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); see Chicago

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Record-Herald Co. v. Tribune Assn., 275 F. 797 (7th Cir.1921); 1 Nimmer on Copyright § 2.11[B] (1983). Copyright
protects the manner of expression of news reports, "the particular form or collocation of words in which the writer
has communicated it." International News Service, 248 U.S. at 234, 39 S.Ct. at 70. Such protection extends to
electronic news reports as well as written reports. See17 U.S.C. § 102(a) (5), (6), and (7); see also Iowa State
University Research Foundations, Inc. v. American Broadcasting Cos., 621 F.2d 57, 61 (2d Cir. 1980). 99 (Emphasis
supplied)

The idea/expression dichotomy has long been subject to debate in the field of copyright law. Abolishing the
dichotomy has been proposed, in that non-protectibility of ideas should be re-examined, if not stricken, from
decisions and the law:

If the underlying purpose of the copyright law is the dual one expressed by Lord Mansfield, the only excuse for the
continuance of the idea-expression test as a judicial standard for determining protectibility would be that it was or
could be a truly useful method of determining the proper balance between the creator’s right to profit from his work
and the public's right that the "progress of the arts not be retarded."

. . . [A]s used in the present-day context[,] the dichotomy has little or no relationship to the policy which it should
effectuate. Indeed, all too often the sweeping language of the courts regarding the non-protectibility of ideas gives
the impression that this is of itself a policy of the law, instead of merely a clumsy and outdated tool to achieve a
much more basic end.100

The idea/expression dichotomy is a complex matter if one is trying to determine whether a certain material is a copy
of another.101 This dichotomy would be more relevant in determining, for instance, whether a stage play was an
infringement of an author’s book involving the same characters and setting. In this case, however, respondents
admitted that the material under review — which is the subject of the controversy — is an exact copy of the original.
Respondents did not subject ABS-CBN’s footage to any editing of their own. The news footage did not undergo any
transformation where there is a need to track elements of the original.

Having established the protectible nature of news footage, we now discuss the concomitant rights accorded to
authors. The authors of a work are granted several rights in relation to it, including copyright or economic rights:

SECTION 177. Copyright or Economic Rights. — Subject to the provisions of Chapter VIII, copyright or economic
rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other forms of
transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a
sound recording, a computer program, a compilation of data and other materials or a musical work in
graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work.(Sec. 5, P. D. No. 49a) (Emphasis supplied)

Under Section 211 of the Intellectual Property Code, broadcasting organizations are granted a more specific set of
rights called related or neighboring rights:

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SECTION 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting organizations shall enjoy
the exclusive right to carry out, authorize or prevent any of the following acts:

211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of films or the use of video tape, of their
broadcasts for the purpose of communication to the public of television broadcasts of the same; and

211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. 52, P.D. No. 49)
(Emphasis supplied)

Section 212 of the Code provides:

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred to in those
Sections are related to:

212.1. The use by a natural person exclusively for his own personal purposes;

212.2. Using short excerpts for reporting current events;

212.3. Use solely for the purpose of teaching or for scientific research; and

212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No. 49a)

The Code defines what broadcasting is and who broadcasting organizations include:

202.7. "Broadcasting" means the transmission by wireless means for the public reception of sounds or of
images or of representations thereof; such transmission by satellite is also "broadcasting" where the means
for decrypting are provided to the public by the broadcasting organization or with its consent;

202.8. "Broadcasting organization" shall include a natural person or a juridical entity duly authorized to
engage in broadcasting[.]

Developments in technology, including the process of preserving once ephemeral works and disseminating them,
resulted in the need to provide a new kind of protection as distinguished from copyright. 102 The designation
"neighboring rights" was abbreviated from the phrase "rights neighboring to copyright." 103 Neighboring or related
rights are of equal importance with copyright as established in the different conventions covering both kinds of
rights.104

Several treaties deal with neighboring or related rights of copyright. 105 The most prominent of these is the
"International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations" (Rome Convention).106

The Rome Convention protects the rights of broadcasting organizations in relation to their broadcasts. Article XIII of
the Rome Convention enumerates the minimum rights accorded to broadcasting organizations:

Article 13

Minimum Rights for Broadcasting Organizations

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Broadcasting organisations shall enjoy the right to authorize or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;

(c) the reproduction:

(i) of fixations, made without their consent, of their broadcasts;

(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the
reproduction is made for purposes different from those referred to in those provisions;

(d) the communication to the public of their television broadcasts if such communication is made in places
accessible to the public against payment of an entrance fee; it shall be a matter for the domestic law of the
State where protection of this right is claimed to determine the conditions under which it may be exercised.

With regard to the neighboring rights of a broadcasting organization in this jurisdiction, this court has discussed the
difference between broadcasting and rebroadcasting:

Section 202.7 of the IP Code defines broadcasting as "the transmission by wireless means for the public reception
of sounds or of images or of representations thereof; such transmission by satellite is also ‘broadcasting’ where the
means for decrypting are provided to the public by the broadcasting organization or with its consent."

On the other hand, rebroadcasting as defined in Article 3(g) of the International Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations, otherwise known as the 1961 Rome
Convention, of which the Republic of the Philippines is a signatory, is "the simultaneous broadcasting by one
broadcasting organization of the broadcast of another broadcasting organization."

....

Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by one broadcasting organization
of the broadcast of another broadcasting organization." The Working Paper prepared by the Secretariat of the
Standing Committee on Copyright and Related Rights defines broadcasting organizations as "entities that take the
financial and editorial responsibility for the selection and arrangement of, and investment in, the transmitted
content."107 (Emphasis in the original, citations omitted)

Broadcasting organizations are entitled to several rights and to the protection of these rights under the Intellectual
Property Code. Respondents’ argument that the subject news footage is not copyrightable is erroneous. The Court
of Appeals, in its assailed Decision, correctly recognized the existence of ABS-CBN’s copyright over the news
footage:

Surely, private respondent has a copyright of its news coverage. Seemingly, for airing said video feed, petitioner
GMA is liable under the provisions of the Intellectual Property Code, which was enacted purposely to protect
copyright owners from infringement.108

News as expressed in a video footage is entitled to copyright protection. Broadcasting organizations have not only
copyright on but also neighboring rights over their broadcasts. Copyrightability of a work is different from fair use of
a work for purposes of news reporting.

VI

ABS-CBN assails the Court of Appeals’ ruling that the footage shown by GMA-7 falls under the scope of Section
212.2 and 212.4 of the Intellectual Property Code:
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The evidence on record, as well as the discussions above, show that the footage used by[respondents] could
hardlybe characterized as a short excerpt, as it was aired over one and a half minutes.

Furthermore, the footage used does not fall under the contemplation of Section 212.2 of the Intellectual Property
Code. A plain reading of the provision would reveal that copyrighted material referred to in Section 212 are short
portions of an artist’s performance under Section 203, or a producer’s sound recordings under Sections 208 and
209. Section 212 does not refer to actual use of video footage of another as its own.

The Angelo dela Cruz footage does not fall under the rule on Section 212.4 of the Intellectual Property Code on fair
use of the broadcast.

....

In determining fair use, several factors are considered, including the nature of the copyrighted work, and the
amount and substantiality of the person used in relation to the copyrighted work as a whole.

In the business of television news reporting, the nature of the copyrighted work or the video footages, are such that,
footage created, must be a novelty to be a good report. Thus, when the . . . Angelo dela Cruz footage was used by
[respondents], the novelty of the footage was clearly affected.

Moreover, given that a substantial portion of the Angelo dela Cruz footage was utilized by GMA-7 for its own, its
use can hardly be classified as fair use.

Hence, [respondents] could not be considered as having used the Angelo dela Cruz [footage] following the
provisions on fair use.

It is also worthy to note that the Honorable Court of Appeals seem to contradict itself when it relied on the
provisions of fair use in its assailed rulings considering that it found that the Angelo dela Cruz footage is not
copyrightable, given that the fair use presupposes an existing copyright. Thus, it is apparent that the findings of the
Honorable Court of Appeals are erroneous and based on wrong assumptions. 109 (Underscoring in the original)

On the other hand, respondents counter that GMA-7’s use of ABS-CBN’s news footage falls under fair use as
defined in the Intellectual Property Code. Respondents, citing the Court of Appeals Decision, argue that a strong
statutory defense negates any finding of probable cause under the same statute. 110 The Intellectual Property Code
provides that fair use negates infringement.

Respondents point out that upon seeing ABS-CBN’s reporter Dindo Amparo on the footage, GMA-7 immediately
shut off the broadcast. Only five (5) seconds passed before the footage was cut. They argue that this shows that
GMA-7 had no prior knowledge of ABS-CBN’s ownership of the footage or was notified of it. They claim that the
Angelo dela Cruz footage is considered a short excerpt of an event’s "news" footage and is covered by fair use. 111

Copyright protection is not absolute.112 The Intellectual Property Code provides the limitations on copyright:

CHAPTER VIII
LIMITATIONS ON COPYRIGHT

Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the following acts shall
not constitute infringement of copyright:

....

184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner
which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right
holder's legitimate interests.
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....

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred to in those
Sections are related to:

....

212.2. Using short excerpts for reporting current events;

....

212.4. Fair use of the broadcast subject to the conditions under Section 185.(Sec. 44, P.D. No. 49a) (Emphasis
supplied)

The determination of what constitutes fair use depends on several factors. Section 185 of the Intellectual Property
Code states:

SECTION 185. Fair Use of a Copyrighted Work. —

185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies
for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. . . . In
determining whether the use made of a work in any particular case is fair use, the factors to be considered shall
include:

a. The purpose and character of the use, including whether such use is of a commercial nature or is for
non-profit educational purposes;

b. The nature of the copyrighted work;

c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

d. The effect of the use upon the potential market for or value of the copyrighted work. Respondents allege
that the news footage was only five (5) seconds long, thus falling under fair use. ABS-CBN belies this
contention and argues that the footage aired for two (2) minutes and 40 seconds. 113 According to the Court
of Appeals, the parties admitted that only five (5) seconds of the news footage was broadcasted by GMA-
7.114

This court defined fair use as "aprivilege to use the copyrighted material in a reasonable manner without the
consent of the copyright owner or as copying the theme or ideas rather than their expression." 115 Fair use is an
exception to the copyright owner’s monopoly of the use of the work to avoid stifling "the very creativity which that
law is designed to foster."116

Determining fair use requires application of the four-factor test. Section 185 of the Intellectual Property Code lists
four (4) factors to determine if there was fair use of a copyrighted work:

a. The purpose and character of the use, including whether such use is of a commercial nature or is for
non-profit educational purposes;

b. The nature of the copyrighted work;

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c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

d. The effect of the use upon the potential market for or value of the copyrighted work.

First, the purpose and character of the use of the copyrighted material must fall under those listed in Section 185,
thus: "criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship,
research, and similar purposes."117 The purpose and character requirement is important in view of copyright’s goal
to promote creativity and encourage creation of works. Hence, commercial use of the copyrighted work can be
weighed against fair use.

The "transformative test" is generally used in reviewing the purpose and character of the usage of the copyrighted
work.118 This court must look into whether the copy of the work adds "new expression, meaning or message" to
transform it into something else.119 "Meta-use" can also occur without necessarily transforming the copyrighted work
used.120

Second, the nature of the copyrighted work is significant in deciding whether its use was fair. If the nature of the
work is more factual than creative, then fair use will be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important to determine whether usage falls under fair
use. An exact reproduction of a copyrighted work, compared to a small portion of it, can result in the conclusion that
its use is not fair. There may also be cases where, though the entirety of the copyrighted work is used without
consent, its purpose determines that the usage is still fair. 121 For example, a parody using a substantial amount of
copyrighted work may be permissible as fair use as opposed to a copy of a work produced purely for economic
gain. Lastly, the effect of the use on the copyrighted work’s market is also weighed for or against the user. If this
court finds that the use had or will have a negative impact on the copyrighted work’s market, then the use is
deemed unfair.

The structure and nature of broadcasting as a business requires assigned values for each second of broadcast or
airtime. In most cases, broadcasting organizations generate revenue through sale of time or timeslots to
advertisers, which, in turn, is based on market share:122 Once a news broadcast has been transmitted, the
broadcast becomes relatively worthless to the station. In the case of the aerial broadcasters, advertising sales
generate most of the profits derived from news reports. Advertising rates are, in turn, governed by market share.
Market share is determined by the number of people watching a show at any particular time, relative to total viewers
at that time. News is by nature time-limited, and so re-broadcasts are generally of little worth because they draw
few viewers. Newscasts compete for market share by presenting their news in an appealing format that will capture
a loyal audience. Hence, the primary reason for copyrighting newscasts by broadcasters would seem to be to
prevent competing stations from rebroadcasting current news from the station with the best coverage of a particular
news item, thus misappropriating a portion of the market share.

Of course, in the real world there are exceptions to this perfect economic view. However, there are also many
caveats with these exceptions. A common exception is that some stations rebroadcast the news of others. The
caveat is that generally, the two stations are not competing for market share. CNN, for example, often makes news
stories available to local broadcasters. First, the local broadcaster is often not affiliated with a network (hence its
need for more comprehensive programming), confining any possible competition to a small geographical area.
Second, the local broadcaster is not in competition with CNN. Individuals who do not have cable TV (or a satellite
dish with decoder) cannot receive CNN; therefore there is no competition. . . . Third, CNN sells the right of
rebroadcast to the local stations. Ted Turner, owner of CNN, does not have First Amendment freedom of access
argument foremost on his mind. (Else he would give everyone free cable TV so everyone could get CNN.) He is in
the business for a profit. Giving away resources does not a profit make. 123 (Emphasis supplied)

The high value afforded to limited time periods is also seen in other media. In social media site Instagram, users
are allowed to post up to only 15 seconds of video. 124 In short-video sharing website Vine,125 users are allowed a
shorter period of six (6) seconds per post. The mobile application 1 Second Everyday takes it further by capturing
and stitching one (1) second of video footage taken daily over a span of a certain period. 126

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Whether the alleged five-second footage may be considered fair use is a matter of defense. We emphasize that the
case involves determination of probable cause at the preliminary investigation stage. Raising the defense of fair
use does not automatically mean that no infringement was committed. The investigating prosecutor has full
discretion to evaluate the facts, allegations, and evidence during preliminary investigation. Defenses raised during
preliminary investigation are subject to further proof and evaluation before the trial court. Given the insufficiency of
available evidence, determination of whether the Angelo dela Cruz footage is subject to fair use is better left to the
trial court where the proceedings are currently pending. GMA-7’s rebroadcast of ABS-CBN’s news footage without
the latter’s consent is not an issue. The mere act of rebroadcasting without authority from the owner of the
broadcast gives rise to the probability that a crime was committed under the Intellectual Property Code.

VII

Respondents cannot invoke the defense of good faith to argue that no probable cause exists.

Respondents argue that copyright infringement is malum in se, in that "[c]opying alone is not what is being
prohibited, but its injurious effect which consists in the lifting from the copyright owners’ film or materials, that were
the result of the latter’s creativity, work and productions and without authority, reproduced, sold and circulated for
commercial use to the detriment of the latter." 127

Infringement under the Intellectual Property Code is malum prohibitum. The Intellectual Property Code is a special
law. Copyright is a statutory creation:

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the
statute, and not simply a pre-existing right regulated by the statute. Being a statutory grant, the rights are only such
as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and
on terms and conditions specified in the statute.128

The general rule is that acts punished under a special law are malum prohibitum. 129 "An act which is declared
malum prohibitum, malice or criminal intent is completely immaterial." 130

In contrast, crimes mala in seconcern inherently immoral acts:

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral
turpitude, is for the Supreme Court to determine". In resolving the foregoing question, the Court is guided by one of
the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of
which was set forth in "Zari v. Flores," to wit:

It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It
must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not
its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not
of themselves immoral but whose illegality lies in their being positively prohibited. (Emphasis supplied)

[These] guidelines nonetheless proved short of providing a clear cut solution, for in International Rice Research
Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not
exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se
and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita
only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding the violation of the statue. 131 (Emphasis in the original)

"Implicit in the concept of mala in se is that of mens rea." 132 Mens reais defined as "the nonphysical element which,
combined with the act of the accused, makes up the crime charged. Most frequently it is the criminal intent, or the
guilty mind[.]"133

Crimes mala in sepre suppose that the person who did the felonious act had criminal intent to do so, while crimes
mala prohibita do not require knowledge or criminal intent:
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In the case of mala in se it is necessary, to constitute a punishable offense, for the person doing the act to have
knowledge of the nature of his act and to have a criminal intent; in the case of mala prohibita, unless such words as
"knowingly" and "willfully" are contained in the statute, neither knowledge nor criminal intent is necessary. In other
words, a person morally quite innocent and with every intention of being a law abiding citizen becomes a criminal,
and liable to criminal penaltes, if he does an act prohibited by these statutes. 134 (Emphasis supplied) Hence,
"[i]ntent 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[.]"135When an act is prohibited by a special law, it is considered injurious to public welfare,
and the performance of the prohibited act is the crime itself. 136

Volition, or intent to commit the act, is different from criminal intent. Volition or voluntariness refers to knowledge of
the act being done. On the other hand, criminal intent — which is different from motive, or the moving power for the
commission of the crime137 — refers to the state of mind beyond voluntariness. It is this intent that is being punished
by crimes mala in se.

Unlike other jurisdictions that require intent for a criminal prosecution of copyright infringement, the Philippines does
not statutorily support good faith as a defense. Other jurisdictions provide in their intellectual property codes or
relevant laws that mens rea, whether express or implied, is an element of criminal copyright infringement. 138

In Canada, criminal offenses are categorized under three (3) kinds: "the full mens rea offence, meaning the
accused’s actual or subjective state of mind has to be proved; strict liability offences where no mens rea has to be
proved but the accused can avoid liability if he can prove he took all reasonable steps to avoid the particular event;
[and] absolute liability offences where Parliament has made it clear that guilt follows proof of the prescribed act
only."139 Because of the use of the word "knowingly" in Canada’s Copyright Act, it has been held that copyright
infringement is a full mens rea offense.140

In the United States, willful intent is required for criminal copyright infringement. 141 Before the passage of the No
Electronic Theft Act, "civil copyright infringements were violations of criminal copyright laws only if a defendant
willfully infringed a copyright ‘for purposes of commercial advantage or private financial gain.’" 142 However, the No
Electronic Theft Act now allows criminal copyright infringement without the requirement of commercial gain. The
infringing act may or may not be for profit.143

There is a difference, however, between the required liability in civil copyright infringement and that in criminal
copyright infringement in the United States. Civil copyright infringement does not require culpability and employs a
strict liability regime144 where "lack of intention to infringe is not a defense to an action for infringement." 145

In the Philippines, the Intellectual Property Code, as amended, provides for the prosecution of criminal actions for
the following violations of intellectual property rights: Repetition of Infringement of Patent (Section 84); Utility Model
(Section 108); Industrial Design (Section 119); Trademark Infringement (Section 155 in relation to Section 170);
Unfair Competition (Section 168 in relation to Section 170); False Designations of Origin, False Description or
Representation (Section 169.1 in relation to Section 170); infringement of copyright, moral rights, performers’ rights,
producers’ rights, and broadcasting rights (Section 177, 193, 203, 208 and 211 in relation to Section 217); and
other violations of intellectual property rights as may be defined by law.

The Intellectual Property Code requires strict liability for copyright infringement whether for a civil action or a
criminal prosecution; it does not require mens rea or culpa: 146

SECTION 216. Remedies for Infringement. —

216.1. Any person infringing a right protected under this law shall be liable:

a. To an injunction restraining such infringement. The court may also order the defendant to desist
from an infringement, among others, to prevent the entry into the channels of commerce of
imported goods that involve an infringement, immediately after customs clearance of such goods.

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b. Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs
and other expenses, as he may have incurred due to the infringement as well as the profits the
infringer may have made due to such infringement, and in proving profits the plaintiff shall be
required to prove sales only and the defendant shall be required to prove every element of cost
which he claims, or, in lieu of actual damages and profits, such damages which to the court shall
appear to be just and shall not be regarded as penalty.

c. Deliver under oath, for impounding during the pendency of the action, upon such terms and
conditions as the court may prescribe, sales invoices and other documents evidencing sales, all
articles and their packaging alleged to infringe a copyright and implements for making them.

d. Deliver under oath for destruction without any compensation all infringing copies or devices, as
well as all plates, molds, or other means for making such infringing copies as the court may order.

e. Such other terms and conditions, including the payment of moral and exemplary damages,
which the court may deem proper, wise and equitable and the destruction of infringing copies of the
work even in the event of acquittal in a criminal case.

216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of
any article which may serve as evidence in the court proceedings. (Sec. 28, P.D. No. 49a)

SECTION 217. Criminal Penalties. — 217.1. Any person infringing any right secured by provisions of Part IV of this
Actor aiding or abetting such infringement shall be guilty of a crime punishable by:

a. Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos
(₱50,000) to One hundred fifty thousand pesos (₱150,000) for the first offense.

b. Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One
hundred fifty thousand pesos (₱150,000) to Five hundred thousand pesos (₱500,000) for the
second offense.

c. Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from Five
hundred thousand pesos (₱500,000) to One million five hundred thousand pesos (₱1,500,000) for
the third and subsequent offenses.

d. In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the court shall consider
the value of the infringing materials that the defendant has produced or manufactured and the damage that
the copyright owner has suffered by reason of the infringement.

217.3. Any person who at the time when copyright subsists in a work has in his possession an article which
he knows, or ought to know, to be an infringing copy of the work for the purpose of: a. Selling, letting for
hire, or by way of trade offering or exposing for sale, or hire, the article;

b. Distributing the article for purpose of trade, or for any other purpose to an extent that will
prejudice the rights of the copyright owner in the work; or

c. Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction
to imprisonment and fine as above mentioned. (Sec. 29, P.D. No. 49a) (Emphasis supplied)

The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange of ideas as opposed to
rewarding the creator, it is the plain reading of the law in conjunction with the actions of the legislature to which we
defer. We have continuously "recognized the power of the legislature . . . to forbid certain acts in a limited class of

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cases and to make their commission criminal without regard to the intent of the doer. Such legislative enactments
are based on the experience that repressive measures which depend for their efficiency upon proof of the dealer’s
knowledge or of his intent are of little use and rarely accomplish their purposes." 147

Respondents argue that live broadcast of news requires a different treatment in terms of good faith, intent, and
knowledge to commit infringement. To argue this point, they rely on the differences of the media used in Habana et
al. v. Robles, Columbia Pictures v. Court of Appeals, and this case:

Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under embargo is not a defense in
copyright infringement and cites the case of Columbia Pictures vs. Court of Appeals and Habana et al. vs.
Robles(310 SCRA 511). However, these cases refer to film and literary work where obviously there is "copying"
from an existing material so that the copier knew that he is copying from an existing material not owned by him. But,
how could respondents know that what they are "copying was not [theirs]" when they were not copying but merely
receiving live video feed from Reuters and CNN which they aired? What they knew and what they aired was the
Reuters live video feed and the CNN feed which GMA-7 is authorized to carry in its news broadcast, it being a
subscriber of these companies[.]

It is apt to stress that the subject of the alleged copyright infringement is not a film or literary work but live broadcast
of news footage. In a film or literary work, the infringer is confronted face to face with the material he is allegedly
copying and therefore knows, or is presumed to know, that what he is copying is owned by another. Upon the other
hand, in live broadcast, the alleged infringer is not confronted with the fact that the material he airs or re-broadcasts
is owned by another, and therefore, he cannot be charged of knowledge of ownership of the material by another.
This specially obtains in the Angelo dela Cruz news footage which GMA-7 received from Reuters and CNN.
Reuters and CNN were beaming live videos from the coverage which GMA-7 received as a subscriber and, in the
exercise of its rights as a subscriber, GMA-7 picked up the live video and simultaneously re-broadcast it. In
simultaneously broadcasting the live video footage of Reuters, GMA-7 did not copy the video footage of petitioner
ABS-CBN[.]148 (Emphasis in the original)

Respondents’ arguments must fail.

Respondents are involved and experienced in the broadcasting business. They knew that there would be
consequences in carrying ABS-CBN’s footage in their broadcast. That is why GMA-7 allegedly cut the feed from
Reuters upon seeing ABS-CBN’s ogo and reporter. To admit a different treatment for broadcasts would mean
abandonment of a broadcasting organization’s minimum rights, including copyright on the broadcast material and
the right against unauthorized rebroadcast of copyrighted material. The nature of broadcast technology is precisely
why related or neighboring rights were created and developed. Carving out an exception for live broadcasts would
go against our commitments under relevant international treaties and agreements, which provide for the same
minimum rights.149

Contrary to respondents’ assertion, this court in Habana, 150 reiterating the ruling in Columbia Pictures,151 ruled that
lack of knowledge of infringement is not a valid defense. Habana and Columbia Pictures may have different factual
scenarios from this case, but their rulings on copyright infringement are analogous. In Habana, petitioners were the
authors and copyright owners of English textbooks and workbooks. The case was anchored on the protection of
literary and artistic creations such as books. In Columbia Pictures, video tapes of copyrighted films were the subject
of the copyright infringement suit.

In Habana, knowledge of the infringement is presumed when the infringer commits the prohibited act:

The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an
appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and
occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy,
which is a synonymous term in this connection, consists in the doing by any person, without the consent of the
owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.

....

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A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know
whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he
copied at his peril.

....

In cases of infringement, copying alone is not what is prohibited. The copying must produce an "injurious effect".
Here, the injury consists in that respondent Robles lifted from petitioners’ book materials that were the result of the
latter’s research work and compilation and misrepresented them as her own. She circulated the book DEP for
commercial use and did not acknowledge petitioners as her source. 152 (Emphasis supplied)

Habana and Columbia Pictures did not require knowledge of the infringement to constitute a violation of the
copyright. One does not need to know that he or she is copying a work without consent to violate copyright law.
Notice of fact of the embargo from Reuters or CNN is not material to find probable cause that respondents
committed infringement. Knowledge of infringement is only material when the person is charged of aiding and
abetting a copyright infringement under Section 217 of the Intellectual Property Code. 153

We look at the purpose of copyright in relation to criminal prosecutions requiring willfulness: Most importantly, in
defining the contours of what it means to willfully infringe copyright for purposes of criminal liability, the courts
should remember the ultimate aim of copyright. Copyright is not primarily about providing the strongest possible
protection for copyright owners so that they have the highest possible incentive to create more works. The control
given to copyright owners is only a means to an end: the promotion of knowledge and learning. Achieving that
underlying goal of copyright law also requires access to copyrighted works and it requires permitting certain kinds
of uses of copyrighted works without the permission of the copyright owner. While a particular defendant may
appear to be deserving of criminal sanctions, the standard for determining willfulness should be set with reference
to the larger goals of copyright embodied in the Constitution and the history of copyright in this country. 154

In addition, "[t]he essence of intellectual piracy should be essayed in conceptual terms in order to underscore its
gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain
owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright,
or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent
of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the
copyright."155

Intellectual property rights, such as copyright and the neighboring right against rebroadcasting, establish an artificial
and limited monopoly to reward creativity. Without these legally enforceable rights, creators will have extreme
difficulty recovering their costs and capturing the surplus or profit of their works as reflected in their markets. This, in
turn, is based on the theory that the possibility of gain due to creative work creates an incentive which may improve
efficiency or simply enhance consumer welfare or utility. More creativity redounds to the public good.

These, however, depend on the certainty of enforcement. Creativity, by its very nature, is vulnerable to the free
rider problem. It is easily replicated despite the costs to and efforts of the original creator. The more useful the
creation is in the market, the greater the propensity that it will be copied. The most creative and inventive
individuals are usually those who are unable to recover on their creations.

Arguments against strict liability presuppose that the Philippines has a social, historical, and economic climate
similar to those of Western jurisdictions. As it stands, there is a current need to strengthen intellectual property
protection.

Thus, unless clearly provided in the law, offenses involving infringement of copyright protections should be
considered malum prohibitum. It is the act of infringement, not the intent, which causes the damage. To require or
assume the need to prove intent defeats the purpose of intellectual property protection.

Nevertheless, proof beyond reasonable doubt is still the standard for criminal prosecutions under the Intellectual
Property Code.

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VIII

Respondents argue that GMA-7’s officers and employees cannot be held liable for infringement under the
Intellectual Property Code since it does not expressly provide direct liability of the corporate officers. They explain
that "(i) a corporation may be charged and prosecuted for a crime where the penalty is fine or both imprisonment
and fine, and if found guilty, may be fined; or (ii) a corporation may commit a crime but if the statute prescribes the
penalty therefore to be suffered by the corporate officers, directors or employees or other persons, the latter shall
be responsible for the offense."156

Section 217 of the Intellectual Property Code states that "any person" may be found guilty of infringement. It also
imposes the penalty of both imprisonment and fine:

Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by provisions of Part IV of this Act
or aiding or abetting such infringement shall be guilty of a crime punishable by:

(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos (₱50,000)
to One hundred fifty thousand pesos (₱150,000) for the first offense.

(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One hundred
fifty thousand pesos (₱150,000) to Five hundred thousand pesos (₱500,000) for the second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from five hundred
thousand pesos (₱500,000) to One million five hundred thousand pesos (₱1,500,000) for the third and
subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of insolvency. (Emphasis supplied) Corporations have
separate and distinct personalities from their officers or directors. 157 This court has ruled that corporate
officers and/or agents may be held individually liable for a crime committed under the Intellectual Property
Code:158

Petitioners, being corporate officers and/or directors, through whose act, default or omission the corporation
commits a crime, may themselves be individually held answerable for the crime. . . . The existence of the corporate
entity does not shield from prosecution the corporate agent who knowingly and intentionally caused the corporation
to commit a crime. Thus, petitioners cannot hide behind the cloak of the separate corporate personality of the
corporation to escape criminal liability. A corporate officer cannot protect himself behind a corporation where he is
the actual, present and efficient actor.159

However, the criminal liability of a corporation’s officers or employees stems from their active participation in the
commission of the wrongful act:

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. 160 (Emphasis supplied) An
accused’s participation in criminal acts involving violations of intellectual property rights is the subject of allegation
and proof. The showing that the accused did the acts or contributed in a meaningful way in the commission of the
infringements is certainly different from the argument of lack of intent or good faith. Active participation requires a
showing of overt physical acts or intention to commit such acts. Intent or good faith, on the other hand, are
inferences from acts proven to have been or not been committed.

We find that the Department of Justice committed grave abuse of discretion when it resolved to file the Information
against respondents despite lack of proof of their actual participation in the alleged crime.

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Ordering the inclusion of respondents Gozon, GMA-7 President; Duavit, Jr., Executive Vice-President; Flores, Vice-
President for News and Public Affairs; and Soho, Director for News, as respondents, Secretary Agra overturned the
City Prosecutor’s finding that only respondents Dela Peña-Reyes and Manalastas are responsible for the crime
charged due to their duties.161 The Agra Resolution reads:

Thus, from the very nature of the offense and the penalty involved, it is necessary that GMA-7’s directors, officers,
employees or other officers thereof responsible for the offense shall be charged and penalized for violation of the
Sections 177 and 211 of Republic Act No. 8293. In their complaint for libel, respondents Felipe L Gozon, Gilberto R.
Duavit, Jr., Marissa L. Flores, Jessica A.Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas felt they were
aggrieved because they were "in charge of the management, operations and production of news and public affairs
programs of the network" (GMA-7). This is clearly an admission on respondents’ part. Of course, respondents may
argue they have no intention to infringe the copyright of ABS-CBN; that they acted in good faith; and that they did
not directly cause the airing of the subject footage, but again this is preliminary investigation and what is required is
simply probable cause. Besides, these contentions can best be addressed in the course of trial. 162 (Citation omitted)

In contrast, the Office of the City Prosecutor, in the Resolution dated December 3, 2004, found that respondents
Gozon, Duavit, Jr., Flores, and Soho did not have active participation in the commission of the crime charged:

This Office, however, does not subscribe to the view that respondents Atty. Felipe Gozon, Gilberto Duavit, Marissa
Flores and Jessica Soho should be held liable for the said offense. Complainant failed to present clear and
convincing evidence that the said respondents conspired with Reyes and Manalastas. No evidence was adduced to
prove that these respondents had an active participation in the actual commission of the copyright infringement or
they exercised their moral ascendancy over Reyes and Manalastas in airing the said footage. It must be stressed
that, conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and
convincingly as the commission of the offense itself.163 (Emphasis supplied, citations omitted)

The City Prosecutor found respondents Dela Peña-Reyes and Manalastas liable due to the nature of their work and
responsibilities. He found that:

[t]his Office however finds respondents Grace Dela Peña-Reyes and John Oliver T. Manalastas liable for copyright
infringement penalized under Republic Act No. 8293. It is undisputed that complainant ABSCBN holds the
exclusive ownership and copyright over the "Angelo [d]ela Cruz news footage". Hence, any airing and re-broadcast
of the said footage without any consent and authority from ABS-CBN will be held as an infringement and violation of
the intellectual property rights of the latter. Respondents Grace Dela Peña-Reyes as the Head of the News
Operation and John Oliver T. Manalastas as the Program Manager cannot escape liability since the news control
room was under their direct control and supervision. Clearly, they must have been aware that the said footage
coming from Reuters or CNN has a "No Access Philippines" advisory or embargo thus cannot be re-broadcast. We
find no merit to the defense of ignorance interposed by the respondents. It is simply contrary to human experience
and logic that experienced employees of an established broadcasting network would be remiss in their duty in
ascertaining if the said footage has an embargo. 164 (Emphasis supplied)

We agree with the findings as to respondents Dela Peña-Reyes and Manalastas. Both respondents committed acts
that promoted infringement of ABS-CBN’s footage. We note that embargoes are common occurrences in and
between news agencies and/or broadcast organizations. 165 Under its Operations Guide, Reuters has two (2) types
of embargoes: transmission embargo and publication embargo. 166 Under ABS-CBN’s service contract with Reuters,
Reuters will embargo any content contributed by ABS-CBN from other broadcast subscribers within the same
geographical location:

4a. Contributed Content

You agree to supply us at our request with news and sports news stories broadcast on the Client Service of up to
three (3) minutes each for use in our Services on a non-exclusive basis and at a cost of US$300.00 (Three
Hundred United States Dollars) per story. In respect of such items we agree to embargo them against use by other
broadcast subscribers in the Territory and confirm we will observe all other conditions of usage regarding
Contributed Content, as specified in Section 2.5 of the Reuters Business Principles for Television Services. For the

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purposes of clarification, any geographical restriction imposed by you on your use of Contributed Content will not
prevent us or our clients from including such Contributed Content in online transmission services including the
internet. We acknowledge Contributed Content is your copyright and we will not acquire any intellectual property
rights in the Contributed Content.167 (Emphasis supplied)

Respondents Dela Peña-Reyes and Manalastas merely denied receiving the advisory sent by Reuters to its clients,
including GMA-7. As in the records, the advisory reads:

ADVISORY - - +++LIVE COVER PLANS+++ 

PHILIPPINES: HOSTAGE RETURN

**ATTENTION ALL CLIENTS**

PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER 

PLANNED FOR THURSDAY, JULY 22:

....

SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.168

There is probable cause that respondents Dela Peña-Reyes and Manalastas directly committed copyright
infringement of ABS-CBN’s news footage to warrant piercing of the corporate veil. They are responsible in airing
the embargoed Angelo dela Cruz footage. They could have prevented the act of infringement had they been
diligent in their functions as Head of News Operations and Program Manager.

Secretary Agra, however, committed grave abuse of discretion when he ordered the filing of the Information against
all respondents despite the erroneous piercing of the corporate veil. Respondents Gozon, Duavit, Jr., Flores, and
Soho cannot be held liable for the criminal liability of the corporation.

Mere membership in the Board or being President per se does not mean knowledge, approval, and participation in
the act alleged as criminal. There must be a showing of active participation, not simply a constructive one.

Under principles of criminal law, the principals of a crime are those "who take a direct part in the execution of the
act; [t]hose who directly force or induce others to commit it; [or] [t]hose who cooperate in the commission of the
offense by another act without which it would not have been accomplished." 169 There is conspiracy "when two or
more persons come to an agreement concerning the commission of a felony and decide to commit it": 170

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

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

In sum, the trial court erred in failing to resume the proceedings after the designated period. The Court of Appeals
erred when it held that Secretary Agra committed errors of jurisdiction despite its own pronouncement that ABS-
CBN is the owner of the copyright on the news footage. News should be differentiated from expression of the news,
particularly when the issue involves rebroadcast of news footage. The Court of Appeals also erroneously held that

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good faith, as. well as lack of knowledge of infringement, is a defense against criminal prosecution for copyright and
neighboring rights infringement. In its current form, the Intellectual Property Code is malum prohibitum and
prescribes a strict liability for copyright infringement. Good faith, lack of knowledge of the copyright, or lack of intent
to infringe is not a defense against copyright infringement. Copyright, however, is subject to the rules of fair. use
and will be judged on a case-to-case basis. Finding probable cause includes a determination of the defendant's
active participation, particularly when the corporate veil is pierced in cases involving a corporation's criminal liability.

WHEREFORE, the Petition is partially GRANTED. The Department of Justice Resolution dated June 29, 2010
ordering the filing of the Information is hereby REINSTATED as to respondents Grace Dela Pena-Reyes and John
Oliver T. Manalastas. Branch 93 of the Regional Trial Court of Quezon City is directed to continue with the
proceedings in Criminal Case No. Q-04-131533.

SO ORDERED.

18. De Los Santos-Dio v. Court of Appeals, June 26, 2013

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 178947               June 26, 2013

VIRGINIA DE LOS SANTOS-DIO, as authorized representative of H.S. EQUITIES, LTD., and WESTDALE
ASSETS, LTD., Petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, JUDGE RAMON S. CAGUIOA, in his capacity as Presiding Judge
of Branch 74, Regional Trial Court, Olongapo City, and TIMOTHY J. DESMOND, Respondents.

x-----------------------x

G.R. No. 179079

PEOPLE OF THE PHILIPPINES, Petitioner, 

vs.
TIMOTHY J. DESMOND, Respondent.

DECISION

PERLAS-BERNABE, J.:

Before the Court are consolidated petitions for review on certiorari 1 assailing the November 8, 2006 Decision2 and
July 19, 2007 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 88285, upholding the validity of the trial
court’s dismissal of separate criminal informations for estafa against private respondent Timothy J. Desmond
(Desmond) due to lack of probable cause.

The Facts

In 2001, petitioner Virginia De Los Santos-Dio (Dio), the majority stockholder of H.S. Equities, Ltd. (HS Equities)
and authorized representative of Westdale Assets, Ltd. (Westdale), 4 was introduced to Desmond, the Chairman
and Chief Executive Officer (CEO) of the Subic Bay Marine Exploratorium, Inc. (SBMEI), and the authorized
representative of Active Environments, Inc. and JV China, Inc. (JV China), the majority shareholder of
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SBMEI.5 After some discussion on possible business ventures, Dio, on behalf of HS Equities, decided to invest a
total of US$1,150,000.006 in SBMEI’s Ocean Adventure Marine Park (Ocean Adventure), a theme park to be
constructed at the Subic Bay Freeport Zone which, when operational, would showcase live performances of false-
killer whales and sea lions. In this relation, Dio claimed that Desmond led her to believe that SBMEI had a capital of
US$5,500,000.00, inclusive of the value of the marine mammals to be used in Ocean Adventure, 7 and also
guaranteed substantial returns on investment.8 Desmond even presented a Business Plan, indicating that: (a)
Ocean Adventure’s "attendance will rise from 271,192 in 2001 to just over 386,728 in 2006, with revenues rising
from US$4,420,000.00 million to US$7,290,000.00 million in the same time frame"; (b) "early investors are
expected to reap an annual return of 23% in 2001, rising to 51% in 2006"; and (c) "fully priced shares would yield a
19% return] in 2001, rising to 42% in 2006."9 Thus, on January 18, 2002, a Subscription Agreement 10 was executed
by Desmond, as representative of SBMEI and JV China, and Dio, as representative of HS Equities.

While no Certificate of Stock was issued either to HS Equities or to Dio, HS Equities was expressly granted minority
protection rights in a subsequent Subscription and Shareholders Agreement 11 dated March 12, 2002, stating that
there shall be "a nominee of the Subscriber to be elected as Treasurer/Chief Financial Officer, who may not be
removed by the Board of Directors without the affirmative vote of the Subscriber." 12 Accordingly, Dio was elected as
a member of SBMEI’s Board of Directors and further appointed as its Treasurer. 13 The parties later executed two
(2) Investor’s Convertible Promissory Notes – one dated April 4, 2001 14 and another dated May 8, 200115 – covering
HS Equities’ infusion of a total of US$1,000,000.00 for the purpose of purchasing machinery, equipment,
accessories, and materials to be used for the construction of Ocean Adventure.

In June 2002, Dio, this time on behalf of Westdale, invested another US$1,000,000.00 16 in a separate business
venture, called the Miracle Beach Hotel Project (Miracle Beach), which involved the development of a resort owned
by Desmond adjoining Ocean Adventure. They agreed that the said investment would be used to settle SBMEI’s
₱40,000,000.00 loan obligation to First Metro Investment Corporation and for the construction of 48 lodging
units/cabanas.17 However, when the corresponding subscription agreement was presented to Dio by SBMEI for
approval, it contained a clause stating that the "funds in the Subscription Bank Account" were also to be used for
the "funding of Ocean Adventure’s Negative Cash Flow not exceeding US$200,000.00." 18 This was in conflict with
the exclusive purpose and intent of Westdale’s investment in Miracle Beach and as such, Dio refused to sign the
subscription agreement.

Dio further claimed that she found out that, contrary to Desmond’s representations, SBMEI actually had no capacity
to deliver on its guarantees, and that in fact, as of 2001, it was incurring losses amounting to ₱62,595,216.00. 19 She
likewise claimed to have discovered false entries in the company’s books and financial statements – specifically, its
overvaluation of the marine animals and its non-disclosure of the true amount of JV China’s investment 20 – which
prompted her to call for an audit investigation. Consequently, Dio discovered that, without her knowledge and
consent, Desmond made certain disbursements from Westdale’s special account, meant only for Miracle Beach
expenditures (special account), and diverted a total of US$72,362.78 therein for the operating expenses of Ocean
Adventure.21 When Desmond refused to execute an undertaking to return the diverted funds, Dio, in her capacity as
Treasurer of SBMEI, suspended the release of the remaining funds in the aforesaid special account. 22

Eventually, after Dio was ousted as Director and Treasurer of SBMEI, 23 she filed, on April 19, 2004, two (2) criminal
complaints24 (subject criminal complaints) for estafa (a) through false pretenses under Article 315(1)(b) 25 of the
Revised Penal Code26 (RPC); and (b) with unfaithfulness or abuse of confidence through misappropriation or
conversion under Article 315(2)(a)27 of the RPC, both against Desmond before the Olongapo City Prosecutor’s
Office (City Prosecutor’s Office), docketed as IS Nos. 04-M-992 and 04-M-993.

In defense, Desmond maintained that his representation of himself as Chairman and CEO of SBMEI was not a
sham and that Dio has not even proven that he did not have the expertise and qualifications to double her
investment. Among others, he also denied having been fired from Beijing Landa Aquarium Co. Ltd. for his
supposed incompetence and mismanagement. He further asserted that it was not deceitful to value the marine
mammals at US$3,720,000.00 as equity contribution of JV China in SBMEI, notwithstanding the fact that two (2)
false killer whales had already perished before the company could start operations. This is because the said
valuation, in any case, would be based on the collective income-earning capacity of the entire animal operating
system derived from revenues generated by marine park attendance and admission fees. 28

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In reply, Dio insisted that SBMEI, at the outset, never had sufficient assets or resources of its own because,
contrary to Desmond’s claims, the total amount of US$2,300,000.00 it purportedly invested in buildings and
equipment actually came from the investments Dio’s company made in SBMEI. 29

After the preliminary investigation, the City Prosecutor issued a Resolution 30 dated August 26, 2004, finding
probable cause against Desmond for the abovementioned crimes, to wit:

The foregoing clearly applies in the instant two (2) cases as borne out by the following facts, to with [sic]: (1)
Desmond, as the Chairman and Chief Executive Office of SBMEI and in order to persuade Dio to invest,
represented that he possessed the necessary influence, expertise and resources (in terms of credit and property)
for the project knowing the same to be false as he never had the capital for the project as borne out by his
correspondences with Dio; and (2) Dio fell for these misrepresentations and the lure of profit offered by Desmond,
thereby being induced to invest the amounts of $1,150,000.00 and $1,000,000.00 to the damage and prejudice of
her company.

The elements of the crimes charged were thus established in these cases, namely Dio parted with her money upon
the prodding and enticement of respondent on the false pretense that he had the capacity and resources for the
proposed project. In the end, Dio was not able to get her money back, thus causing her damage and prejudice.
Moreover, such defraudation or misappropriation having been committed by Desmond through his company SBMEI
involving funds solicited from Dio as a member of the general public in contravention of the public interest, the
probable cause clearly exists to indict Desmond for the crime of Estafa under Article 315 (1)(b) and (2)(a) of the
Revised Penal Code in relation to PD No. 1689.31

In view of the foregoing, corresponding criminal informations 32 (subject informations) were filed with the Regional
Trial Court of Olongapo City, Branch 74 (RTC), docketed as Criminal Case Nos. 516-2004 and 515-2004. The
accusatory portions thereof read as follows:

Criminal Case No. 516-200433

That in or about and sometime in early 2001, in Olongapo City, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, being the officer of Subic Bay Marine Exploration, Inc. (SBMEI), acting
as a syndicate and by means of deceit, did then and there, willfully, unlawfully and feloniously defraud H.S.
EQUITIES LIMITED, represented in this case by Virginia S. Delos Santos-Dio in the following manner, to wit: the
said accused by means of false manifestations and fraudulent representations which he made to said Virginia S.
Delos Santos-Dio to the effect that he had the expertise and qualifications, as well as the resources, influence,
credit and business transaction with the Subic Bay Metropolitan Authority (SBMA) and other financing institutions to
ensure the viability of the Subic Bay Marine Exploration Ocean Adventure Project (SBMEOA), which he
represented to be a qualified and legally existing investment enterprise with capacity to solicit investment from the
general public, by submitting documents for the purpose, which representations he knew to be false and fraudulent
and the supporting documents are similarly spurious and were only made in order to induce said Virginia S. Delos
Santos-Dio to invest and deliver as in fact she invested and delivered a total amount of One Million One Hundred
Fifty Thousand US Dollars ($1,150,000.00) to the said accused on the strength of said manifestations and
representations and supporting documents, and said accused, once in possession of the said amount, misapplied,
converted and misappropriated the same to his own personal use and benefit, to the damage and prejudice of H.S.
Equities Limited in the amount of US $1,150,000.00 or Php57,500,000.00 Pesos, the dollar computed at the rate of
Php 50.00 to [US]$1.00 which was the prevailing rate of exchange of a dollar to peso at the time of the commission
of the offense.

CONTRARY TO LAW.

Criminal Case No. 515-200434

That in or about and sometime during the period from June 2002 to July 2002, in Olongapo City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully
and feloniously defraud Westdale Assets, Limited represented in this case by Virginia S. Delos Santos-Dio in the

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following manner to wit: the said accused received in trust and for administration from the said Virginia S. Delos
Santos-Dio the amount of One Million US Dollars ($1,000,000.00) under the express obligation of using the same
to pay the loan facility of the Subic Bay Marine Exploration, Inc. (SBMEI) with First Metro Investment Corporation
and to fund the construction and development of the Miracle Beach Project but the said accused, once in
possession of the said amount, with grave abuse of confidence and with intent to defraud, misapplied,
misappropriated and converted the same for his own use and benefit by devoting it to a purpose or use different
from that agreed upon and despite repeated demands made upon him to account for and to return the said amount,
he failed and refused and still fails and refuses to do so, to the damage and prejudice of the said Westdale Assets,
Limited in the amount of US $1,000,000.00 or its equivalent to FIFTY MILLION (Php 50,000,000.00) Pesos,
Philippine Currency, the dollar being computed at the rate of Php50.00 to $ 1.00 which was the prevailing rate of
exchange at the commission of the offense, to the damage and prejudice of the latter in the aforementioned
amount.

CONTRARY TO LAW.

Aggrieved, Desmond filed a Motion for Reconsideration, 35 as well as a Motion to Withdraw Filed Informations.36 He
also filed before the RTC a Motion to Defer Further Proceedings and to Defer Issuance of Warrant of Arrest 37 but
subsequently withdrew the same and filed, instead, a Motion for Judicial Determination of Probable Cause. 38

The RTC Ruling

In an Order39 dated October 21, 2004, the RTC ruled in favor of Desmond and declared that no probable cause
exists for the crimes charged against him since the elements of estafa were not all present, to wit:

First, the element of misrepresentation or deceit found in par. 2 (a) Article 315 of the Revised Penal Code is absent.
It must be emphasized that the promises allegedly made to the complainant by the accused that her company’s
investment will significantly increase, clearly appeared in the Subic Bay Marine Exploration, Inc.’s ("SBMEI", for
brevity) printed business plan dated January 12, 2001 (Annex "A", Complaint-Affidavit dated 19 April 2004). Verily,
this is SBMEI’s representation or "come on" to would-be investors and not a personal assurance of the accused.
The fact that accused was the company’s Chief Executive Officer and Chairman of the Board of Directors is of no
moment in the absence of any evidence to show that accused personally prepared the business plan thereby
making the alleged "rosy picture" his own personal enticements to the complainant. Therefore, there being a dearth
of evidence pointing to the accused as author of the SBMEI’s business plan, any misrepresentation or deceit
committed cannot be personally attributed to him.

Furthermore, the court cannot find any sufficient evidence that the accused personally assured the complainant
about his so-called power, influence and credit with the SBMA and other financial institutions that would supposedly
insure the viability and profitability of the project. Note that nowhere in the Complaint-Affidavit of the private
complainant are there specific factual allegations that would show that the accused had personal business
meetings with the SBMA and said financial institutions. As to how and in what manner and scope accused
exercised such alleged power, influence and credit over these juridical entities remain a bare and self-serving
averment in the absence of any factual detail or account.

Finally, it cannot be gainsaid [sic] that accused was the one who personally valuated the marine mammals
contributed by JV China Incorporated to the Subic Bay Marine Exploration, Inc. as capital amounting to US$3.724
Million. Evidence clearly point to an independent valuation done by a third party namely Beijing Landa Aquarium
that valued the marine mammals under the Buy-Out Agreement dated September 9, 1998. Needless to state, the
onus is on complainant to controvert this valuation. Again, however, no adequate proof was adduced along this
line.

Second, the element of personal misappropriation by the accused under par. 1(b) Article 315 of the Revised Penal
Code is likewise not present. While it may be conceded that there was money utilized to pay salaries of expatriates
and staff as well as the cost of utilities amounting to US$72,272.00 complainant failed to show that said money was
taken from her companies’ investments in SBMEI. It must be pointed out that other than complainant’s bare
allegation, there was no document presented categorically stating that the investment of complainant’s companies

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were earmark for a particular payment or project. Hence, when the investment entered SBMEI’s financial coffers,
the same presumably were co-mingled with other monies of the corporation.

Moreover and more revealing, is the fact that again there was no showing that it was accused who personally
caused the payment of these expenses allegedly in violation of the objective of the investment. It must be noted
that SBMEI is a corporation and not a single proprietorship. Being a corporation, expenses paid of such a kind as
utilities and salaries are not authorized personally and solely by the President nor the Chief Executive Officer nor
even by the Chairman of the Board for that matter. These are corporate acts that are passed through board
resolutions. Hence, these corporate acts can in no way be considered personal acts of the accused. Yet, he was
singled out among all 5 members of the Board of Directors who presumably, in the ordinary course of business,
approved by resolution the payments of such utilities and salaries. Consequently, there is again insufficiency of
evidence that the accused alone caused the payment of these salaries and utilities for the sole purpose of
pocketing the money thereby using the same for personal gain. 40

Consequently, the RTC denied the issuance of a warrant of arrest and hold departure order against Desmond and
ordered the dismissal of the cases against him:

WHEREFORE, foregoing considered, the subject motion for judicial determination of probable cause is favorably
granted. There being no probable cause, the cases against the accused must be dismissed as they are hereby
DISMISSED. The motions to issue warrant of arrest and Hold

Departure Order as well as the prayer for provisional remedy are necessarily DENIED.

SO ORDERED.41

Given the RTC’s dismissal of the foregoing criminal cases, the City Prosecutor’s Office filed motion for
reconsideration which was, however, denied. As such, it filed a petition for certiorari and mandamus 42 before the CA
on the ground of grave abuse of discretion. Relatedly, Dio also filed a petition-in-intervention 43 before the CA,
praying for the reinstatement of the subject criminal complaints.

The CA Ruling

In its November 8, 2006 Decision,44 the CA upheld the RTC’s authority to dismiss a criminal case if in the process
of determining probable cause for issuing a warrant of arrest, it also finds the evidence on record insufficient to
establish probable cause. It explained that such dismissal is an exercise of judicial discretion sanctioned under
Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure. On this score, the CA evaluated the evidence
presented and agreed with the RTC’s conclusions that there was no sufficient basis showing that Desmond
committed estafa by means of false pretenses. Neither was it established that the money sourced from petitioner
Dio was converted by respondent Desmond for some other purpose other than that for which it was intended.
Pertinent portions of the CA Decision restated the RTC’s observations in this wise:

In the instant case, the alleged false representations by Desmond which allegedly induced private complainants
H.S. Equities, Ltd. ("H.S. Equities") and Dio, to part with their money are not supported by the facts on record. First,
the alleged false representation employed by Desmond with respect to his expertise and qualifications in the form
of influence, credit and business transactions with the Subic Bay Metropolitan Authority (SBMA) and financial
institutions and such resources to enable private complainants to double its investment with SBMEI has not been
shown to be false.

Indeed, nowhere in the documentary evidence presented by private complainants that allegedly contained the
above false representations does it show that it was private respondent himself who made such representation.
Notably, the SBMEI’s Business Plan dated January 12, 2001 to which private complainants anchor such allegation
does not indicate that the representations made therein came personally from Desmond. In addition, neither does it
appear from such document that the statements therein were used as a form of a personal assurance coming from
Desmond that private complainants would indeed double the amount they had invested with SBMEI. If at all, we

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agree with the trial court that statements made in the said business plan were merely a form of enticement to
encourage would-be investors from [sic] investing in such kind of business undertaking.

Moreover, we likewise agree with the trial court that no factual allegations were made by private complainants as to
how such false pretense of power and influence was made upon them by Desmond and which convinced private
complainants to part with their money. It bears stressing that the allegations of false pretense of power and
influence in a case of estafa are mere conclusions of law which must be substantiated at the very least by
circumstances which would show that the person accused of committing estafa did indeed commit acts of false
representations. As the records show, there was no misrepresentation on the part of Desmond that he is the
Chairman and Chief Executive Officer of SBMEI which is a corporation engaged in the business of developing
marine parks. Significantly, the records likewise show that SBMEI did indeed build and develop a marine park in
Subic Bay (Ocean Adventure) for the purposes stated in its business plan and had entered into a long-term lease
agreement with SBMA. Documentary evidence in the form of the Report of Independent Auditors to SBMEI shows
the amount of investment the corporation had invested in the said business undertaking. For instance, the
corporation had invested the amount of ₱106,788,219.00 in buildings and equipment alone. It has also assets
consisting of marine mammals which are necessary for the operation of the marine park. In this respect, we cannot
subscribe to private complainants’ contention that there was misrepresentation on the part of private respondent
that he had overvalued the worth of the marine mammals it had purchased from Beijing Landa Aquarium Co., Ltd.
of the Republic of China. This claim of private complainants of the deceitful acts employed by Desmond in
overpricing the value of the marine animals for US$3.724 Million when in fact the sea animals were only valued for
one U.S. dollar was not corroborated by the evidence on hand.

xxxx

In the same manner, the facts in the case at bar that would allegedly constitute a criminal charge of estafa under
par. 1(b) are wanting. Be it noted that under the said paragraph, estafa with unfaithfulness or abuse of confidence
through misappropriation or conversion of the money, goods or any other personal property must be received in
trust, on commission, for administration, or under any other obligation which involves the duty to make delivery
thereof or to return the same. It is not amiss to note that a perusal of private complainants’ Complaint-Affidavit
shows that subject money in the amount of US$1,000,000.00 to be used for the Miracle Beach Project was placed
in a special account with Equitable-PCI Bank. As the records show, the said funds were placed by Dio under the
control of Fatima Paglicawan, an employee of Westdale, such that, no money can be withdrawn from the special
account without the signature of the said employee, Desmond and a certain John Corcoran. Therefore, at such
time, it cannot be said that the funds were received for administration or already under the juridical possession of
Desmond. Meanwhile, we would like to emphasize that to constitute conversion, it presupposes that the thing has
been devoted to a purpose or use different from that agreed upon. Verily, a facial examination of the Journal
Voucher and Check Voucher pertaining to the withdrawals made on such account clearly shows that the
disbursements were not only authorized by Paglicawan but likewise indicated that the purpose for such withdrawals
was to cover payments for BIR taxes and the salaries of local employees and expatriates.

To repeat, these withdrawals as well as the purpose thereof were known to Paglicawan when [sic] she authorized
the disbursements. Paglicawan, who was designated by private complainant Dio to control the release of the said
funds is presumed to have acted under the latter’s authority. Such miscommunication between Dio and Paglicawan
with respect to the purpose of the funds does not make out a case of estafa there being no abuse of confidence or
conversion to speak of taking into account that the said funds were released under the presumed authority of
private complainants through Paglicawan, and which were indeed used for the purpose for which it was withdrawn.
That being the case, there can be no damage or prejudice to Westdale and Dio as there was no disturbance in the
property rights of Westdale and Dio in the said funds since the same were used for the purpose for which it was
disbursed.

Then again, we agree with the trial court that there is no sufficient evidence adduced to support the criminal
charges of estafa against Desmond. As pointed out by the trial court, while private respondent is the Chairman and
Chief Executive Officer of SBMEI, there is no showing that he had personally and solely authorized the application
of the above funds for the payment of expenses not directly connected with the Miracle Beach Project. Nor does it
appear that as Chairman and Chief Executive Officer, Desmond has been appointed to execute, on his own, such
corporate acts.45 (Citations omitted)

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The City Prosecutor and Dio filed their respective motions for reconsideration which were both denied in a
Resolution46 dated July 19, 2007.

Hence, the instant petitions.

The Issue Before the Court

The primordial issue in this case is whether or not the CA erred in finding no grave abuse of discretion on the part
of the RTC when it dismissed the subject informations for lack of probable cause.

The Court’s Ruling

The petitions are meritorious.

Determination of probable cause may be either executive or judicial.

The first is made by the public prosecutor, during a preliminary investigation, where he is given broad discretion to
determine whether probable cause exists for the purpose of filing a criminal information 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.47

The second is one made by the judge to ascertain whether a warrant of arrest should be issued against the
accused. In this respect, the judge must satisfy himself that, on the basis of the evidence submitted, there is a
necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge, therefore,
finds no probable cause, the judge cannot be forced to issue the arrest warrant. 48 Notably, since the judge is
already duty-bound to determine the existence or non-existence of probable cause for the arrest of the accused
immediately upon the filing of the information, the filing of a motion for judicial determination of probable cause
becomes a mere superfluity,49 if not a deliberate attempt to cut short the process by asking the judge to weigh in on
the evidence without a full-blown trial.

In the case of Co v. Republic,50 the Court emphasized the settled distinction between an executive and a judicial
determination of probable cause, viz:51

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in
nature. It is part of the prosecution's job.1âwphi1 The second kind of preliminary investigation which is more
properly called preliminary examination is judicial in nature and is lodged with the judge.

On this score, it bears to stress that a judge is not bound by the resolution of the public prosecutor who conducted
the preliminary investigation and must himself ascertain from the latter’s findings and supporting documents
whether probable cause exists for the purpose of issuing a warrant of arrest. This prerogative is granted by no less
than the Constitution which provides 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."52

While a judge’s determination of probable cause is generally confined to the limited purpose of issuing arrest
warrants, Section 5(a),53 Rule 112 of the Revised Rules of Criminal Procedure explicitly states that a judge may
immediately dismiss a case if the evidence on record clearly fails to establish probable cause, 54 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

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probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused
had already been arrested, pursuant to a warrant issued by the judge who conducted preliminary investigation or
when the complaint or information was filed pursuant to Section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.
(Emphasis and underscoring supplied)

In this regard, so as not to transgress the public prosecutor’s authority, it must be stressed that the judge’s
dismissal of a case must be done only in clear-cut cases when the evidence on record plainly fails to establish
probable cause – that is when the records readily show uncontroverted, and thus, established facts which
unmistakably negate the existence of the elements of the crime charged. On the contrary, if the evidence on record
shows that, more likely than not, the crime charged has been committed and that respondent is probably guilty of
the same, the judge should not dismiss the case and thereon, order the parties to proceed to trial. In doubtful
cases, however, the appropriate course of action would be to order the presentation of additional evidence. 55

In other words, once the information is filed with the court and the judge proceeds with his primordial task of
evaluating the evidence on record, he may either: (a) issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record clearly fails to establish probable cause; and (c) order the
prosecutor to submit additional evidence, in case he doubts the existence of probable cause. 56

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

Lest it be misconceived, trial judges will do well to remember that when a perceived gap in the evidence leads to a
"neither this nor that" conclusion, a purposeful resolution of the ambiguity is preferable over a doubtful dismissal of
the case. Verily, a judge's discretion to dismiss a case immediately after the filing of the information in court is
appropriate only when the failure to establish probable cause can be clearly inferred from the evidence presented
and not when its existence is simply doubtful. After all, it cannot be expected that upon the filing of the information
in court the prosecutor would have already presented all the evidence necessary to secure a conviction of the
accused, the objective of a previously-conducted preliminary investigation being merely to determine whether there
is sufficient ground, to engender a well-founded belief that a crime has been committed and that the respondent is
probably guilty thereof and should be held for trial. 59 In this light, given that the lack of probable cause had not been
clearly established in this case, the CA erred, and the RTC gravely abused its discretion, by ruling to dismiss
Criminal Case Nos. 515-2004 and 516-2004. Indeed, these cases must stand the muster of a full-blown trial where
the parties could be given, as they should be given, the opportunity to ventilate their respective claims and
defenses, on the basis of which the court a quo can properly resolve the factual disputes therein.

WHEREFORE, the petitions are GRANTED. The November 8, 2006 Decision and July 19, 2007 Resolution of the
Court of Appeals in CA G.R. SP No. 88285 which affirmed the October 21, 2004 Order of Dismissal issued by the
Regional Trial Court of Olongapo City, Branch 74 are SET ASIDE. The two (2) criminal informations for estafa
against respondent Timothy J. Desmond in Criminal Case Nos. 515-2004 and 516-2004 are hereby REINSTATED.
Accordingly, the trial court is directed to proceed with the arraignment of the accused and the trial of the case with
dispatch.

SO ORDERED.

19. Mendoza v. People of the Philippines, April 21, 2014

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Republic of the Philippines

SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 197293               April 21, 2014

ALFREDO C. MENDOZA, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.

DECISION

LEONEN, J.:

While the determination of probable cause to charge a person of a crime is the sole function of the. prosecutor, the
trial court may, in the protection of one's fundamental right to liberty, dismiss the case if, upon a personal
assessment of the evidence, it finds that the evidence does not establish probable cause.

This is a petition for review on certiorari1 assailing the Court of Appeals' decision2 dated January 14, 2011, which
reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
theft and estafa.

This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul C. Evangelista,
on January 8, 2008 for qualified theft and estafa against Alfredo. 3

In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used Car Supervisor.
On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial audit of the used cars and
discovered that five (5) cars had been sold and released by Alfredo without Rolando’s or the finance manager’s
permission.4

The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit the payments
totalling ₱886,000.00. It was further alleged that while there were 20 cars under Alfredo’s custody, only 18 were
accounted for. Further investigation revealed that Alfredo failed to turn over the files of a 2001 Hyundai Starex and
a Honda City 1.5 LXI. Juno Cars alleged that taking into account the unremitted amounts and the acquisition cost of
the Honda City, Alfredo pilfered a total amount of ₱1,046,000.00 to its prejudice and damage. 5

In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed failure to prove ownership over the five
(5) cars or its right to possess them with the purported unremitted payments. Hence, it could not have suffered
damage.6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution 7 finding probable cause and
recommending the filing of an information against Alfredo for qualified theft and estafa.

Alfredo moved for reconsideration, but the motion was denied. 8 He then filed a petition for review with the
Department of Justice on May 16, 2008.9

While Alfredo’s motion for reconsideration was still pending before the Office of the City Prosecutor of
Mandaluyong, two informations for qualified theft 10 and estafa11 were filed before the Regional Trial Court, Branch
212, Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination of probable cause 12 before the
trial court. On April 28, 2008, he also filed a motion to defer arraignment.

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Several clarificatory hearings were scheduled but were not conducted. 13 On February 4, 2009, the parties agreed to
submit all pending incidents, including the clarificatory hearing, for resolution. 14

On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an order 15 dismissing the
complaint, stating that:

After conducting an independent assessment of the evidence on record which includes the assailed Resolution
dated 04 March 2008, the court holds that the evidence adduced does not support a finding of probable cause for
the offenses of qualified theft and estafa. x x x. 16

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

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court acted without or in
excess of its jurisdiction and with grave abuse of discretion when it dismissed the complaint. It argued that "the
determination of probable cause and the decision whether or not to file a criminal case in court, rightfully belongs to
the public prosecutor."18

On January 14, 2011, the Court of Appeals rendered a decision, 19 reversed the trial court, and reinstated the case.
In its decision, the appellate court ruled that the trial court acted without or in excess of its jurisdiction "in
supplanting the public prosecutor’s findings of probable cause with her own findings of insufficiency of evidence
and lack of probable cause."20

Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued that the trial
court was correct in finding that there was no probable cause as shown by the evidence on record. He argued that
"judicial determination of probable cause is broader than [the] executive determination of probable cause" 21 and that
"[i]t is not correct to say that the determination of probable cause is exclusively vested on the prosecutor x x x." 22

In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and arguments that were a mere
rehash of those already considered and passed upon by the appellate court.

The Office of the Solicitor General, arguing for public respondent, stated in its comment 24 that the appellate court
correctly sustained the public prosecutor in his findings of probable cause against Alfredo. Since there was no
showing of grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court should respect his
determination of probable cause.

In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while not a superior faculty[,] covers
a broader encompassing perspective in the disposition of the issue on the existence of probable cause." 26 He
argued that the findings of the trial court should be accorded greater weight than the appellate court’s. It merely
reviewed the findings of the trial court.

The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on the basis of its
own independent finding of lack of probable cause.

Time and again, this court has been confronted with the issue of the difference between the determination of
probable cause by the prosecutor on one hand and the determination of probable cause by the judge on the other.
We examine these two concepts again.

Juno Cars filed a complaint against Alfredo for qualified theft 27 and estafa under Article 315, fourth paragraph, no.
3(c)28 of the Revised Penal Code. Since qualified theft is punishable by reclusion perpetua, a preliminary
investigation must first be conducted "to determine whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial,"
in accordance with Rule 112, Section 1 of the Rules on Criminal Procedure.

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At this stage, the conduct of the preliminary investigation and the subsequent determination of the existence of
probable cause lie solely within the discretion of the public prosecutor. 29 If upon evaluation of the evidence, the
prosecutor finds sufficient basis to find probable cause, he or she shall then cause the filing of the information with
the court.

Once the information has been filed, the judge shall then "personally evaluate the resolution of the prosecutor and
its supporting evidence"30 to determine whether there is probable cause to issue a warrant of arrest. At this stage, a
judicial determination of probable cause exists.

In People v. Castillo and Mejia,31 this court has stated:

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

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If
the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant. 32

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

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender
should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant
of arrest is made by the Judge. The preliminary investigation proper—whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to
the expense, rigors and embarrassment of trial—is the function of the Prosecutor. 34 (Emphasis supplied)

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

People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that case, Jonathan Cerbo allegedly
shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for murder was filed against Jonathan
Cerbo. The daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit charging Billy Cerbo
with conspiracy. The prosecutor then filed a motion to amend the information, which was granted by the court. The
information was then amended to include Billy Cerbo as one of the accused, and a warrant of arrest was issued
against him.

Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause. The trial court
granted this motion, recalled the warrant, and dismissed the case against him. The Court of Appeals affirmed this
dismissal. This court, however, reversed the Court of Appeals and ordered the reinstatement of the amended
information against Billy Cerbo, stating that:

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In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent
Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its face and there is no
showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should
not dismiss it for ‘want of evidence,’ because evidentiary matters should be presented and heard during the trial.
The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our
criminal justice system should be clearly understood.

The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial
powers do need to be protected when circumstances so require. But just as we recognize this need, we also
acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious
irregularity or manifest error in the performance of a public prosecutor’s duties, courts ought to refrain from
interfering with such lawfully and judicially mandated duties.

In any case, if there was palpable error or grave abuse of discretion in the public prosecutor’s finding of probable
cause, the accused can appeal such finding to the justice secretary and move for the deferment or suspension of
the proceedings until such appeal is resolved.36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts and evidence
were "sufficient to warrant the indictment of [petitioner] x x x." 37 There was nothing in his resolution which showed
that he issued it beyond the discretion granted to him by law and jurisprudence.

While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the discretion to make
her own finding of whether probable cause existed to order the arrest of the accused and proceed with trial.

Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court cannot hold the
accused for arraignment and trial.

Article III, Section 2 of the Constitution states:

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

The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has not personally
determined the existence of probable cause. The phrase "upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce" allows a
determination of probable cause by the judge ex parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates the judge to
"immediately dismiss the case if the evidence on record fails to establish probable cause." Section 6, paragraph (a)
of Rule 112 reads:

Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days from the
filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused
has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

In People v. Hon. Yadao:38

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Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal
information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a
warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional evidence within five
days from notice in case of doubt as to the existence of probable cause.

But the option to order the prosecutor to present additional evidence is not mandatory.1âwphi1 The court’s first
option under the above is for it to "immediately dismiss the case if the evidence on record clearly fails to establish
probable cause." That is the situation here: the evidence on record clearly fails to establish probable cause against
the respondents.39 (Emphasis supplied)

It is also settled that "once a complaint or information is filed in court, any disposition of the case, whether as to its
dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court." 40

In this case, Judge Capco-Umali made an independent assessment of the evidence on record and concluded that
"the evidence adduced does not support a finding of probable cause for the offenses of qualified theft and
estafa."41Specifically, she found that Juno Cars "failed to prove by competent evidence" 42 that the vehicles alleged
to have been pilfered by Alfredo were lawfully possessed or owned by them, or that these vehicles were received
by Alfredo, to be able to substantiate the charge of qualified theft. She also found that the complaint "[did] not state
with particularity the exact value of the alleged office files or their valuation purportedly have been removed,
concealed or destroyed by the accused,"43 which she found crucial to the prosecution of the crime of estafa under
Article 315, fourth paragraph, no. 3(c) of the Revised Penal Code. She also noted that:

x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to clear out
essential matters pertinent to the offense charged and even directed the private complainant to bring documents
relative to the same/payment as well as affidavit of witnesses/buyers with the end view of satisfying itself that
indeed probable cause exists to commit the present case which private complainant failed to do. 44

Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly dismissed the
case against Alfredo.

Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in dismissing cases
due to lack of probable cause, considering the preliminary nature of the evidence before it. It is only when he or she
finds that the evidence on hand absolutely fails to support a finding of probable cause that he or she can dismiss
the case. On the other hand, if a judge finds probable cause, he or she must not hesitate to proceed with
arraignment and trial in order that justice may be served.

WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of Appeals in CA-G.R.
SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza
are DISMISSED.

SO ORDERED.

20. Leviste v. Alameda, August 3, 2010

THIRD DIVISION
 
 
JOSE ANTONIO C. LEVISTE, G.R. No. 182677
Petitioner,  
  Present:
   
- versus - CARPIO MORALES, Chairperson,
  NACHURA,*
  BERSAMIN,
HON. ELMO M. ALAMEDA, HON. RAUL M. ABAD,** and

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GONZALEZ, HON. EMMANUEL Y. VELASCO, VILLARAMA, JR., JJ.

HEIRS OF THE LATE RAFAEL DE LAS ALAS,  
Respondents.  
Promulgated:
August 3, 2010
 
   
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 
 
DECISION
 
 

CARPIO MORALES, J.:
 
Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the August 30,
2007 Decision[1] and the April 18, 2008 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed
the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion for reconsideration,
respectively.
 
Petitioner was, by Information [3] of January 16, 2007, charged with homicide  for the death of Rafael de las Alas
on January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was
raffled, presided by Judge Elmo Alameda, forthwith issued a commitment order [4] against petitioner who was placed
under police custody while confined at the Makati Medical Center.[5]
 
After petitioner posted a P40,000 cash bond which the trial court approved, [6] he was released from detention, and
his arraignment was set on January 24, 2007.
 
The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an Urgent Omnibus
Motion[7] praying, inter alia, for the deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper offense.
 
The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring petitioners arraignment and
allowing the prosecution to conduct a reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order of January 31, 2007 [9] denying
reconsideration of the first order.Petitioner assailed these orders via certiorari and prohibition before the Court of
Appeals.
 
 
 
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer acting
on the public prosecutors recommendation on the proper offense until after the appellate court resolves his
application for injunctive reliefs, or alternatively, to grant him time to comment on the prosecutors recommendation
and thereafter set a hearing for the judicial determination of probable cause. [10] Petitioner also separately moved for
the inhibition of Judge Alameda with prayer to defer action on the admission of the Amended Information. [11]
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The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 2007[12] that
admitted the Amended Information[13] for murder  and directed the issuance of a warrant of arrest; and (2) Order
of February 8, 2007[14] which set the arraignment on February 13, 2007. Petitioner questioned these two orders
via supplemental petition before the appellate court.
 
The appellate court dismissed petitioners petition, hence, his present petition, arguing that:
 

 
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF
THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE
ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE
RULES OF COURT[;]
 
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE
PROSECUTOR VELASCOS AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY
AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO
BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]
 
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION DATED 2
FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE.[15] (emphasis in the original omitted)

 
Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner refused to
plead, drawing the trial court to enter a plea of not guilty for him.
 
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex Abundanti
Cautela[16] which the trial court, after hearings thereon, granted by Order of May 21, 2007,[17] it finding that the
evidence of guilt for the crime of murder is not strong. It accordingly allowed petitioner to post bail in the amount
of P300,000 for his provisional liberty.
 
The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner under the
Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of homicide, sentencing
him to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one
day of reclusion temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court, docketed
as CA-G.R. CR No. 32159, during the pendency of which he filed an urgent application for admission to bail pending
appeal. The appellate court denied petitioners application which this Court, in G.R. No. 189122, affirmed by Decision
of March 17, 2010.
 
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The Office of the Solicitor General (OSG) later argued that the present petition had been rendered moot
since the presentation of evidence, wherein petitioner actively participated, had been concluded. [18]
 
Waiver on the part of the accused  must be distinguished from mootness of the petition, for in the
present case, petitioner did not, by his active participation in the trial, waive his stated objections.
 
Section 26, Rule 114 of the Rules of Court provides:

 
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge against him, provided that he
raises them before entering his plea. The court shall resolve the matter as early as practicable but
not later than the start of the trial of the case.

 
By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the
charge against him, the validity of the admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment. During the arraignment on March 21,
2007, petitioner refused to enter his plea since the issues he raised were still pending resolution by the appellate
court, thus prompting the trial court to enter a plea of not guilty for him.
 
The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack
of or irregular preliminary investigation applies only if he voluntarily  enters his plea and participates during trial,
without previously invoking his objections thereto.[19] There must be clear and convincing proof that petitioner had
an actual intention to relinquish his right to question the existence of probable cause. When the only proof of
intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. [20]
 
From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of
petitioner to preclude him from obtaining a definite resolution of the objections he so timely invoked.  Other than its
allegation of active participation, the OSG offered no clear and convincing proof that petitioners participation in the
trial was unconditional with the intent to voluntarily and unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the present petition. [21]
 
Whatever delay arising from petitioners availment of remedies against the trial courts Orders cannot be
imputed to petitioner to operate as a valid waiver on his part.Neither can the non-issuance of a writ of preliminary
injunction be deemed as a voluntary relinquishment of petitioners principal prayer. The non-issuance of such
injunctive relief only means that the appellate court did not preliminarily find any exception [22] to the long-standing
doctrine that injunction will not lie to enjoin a criminal prosecution. [23] Consequently, the trial of the case took its
course.
 

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The petition is now moot, however, in view of the trial courts rendition of judgment.
 
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or value. [24]
 
The judgment convicting petitioner of homicide under the Amended Information for murder operates as a
supervening event that mooted the present petition. Assuming that there is ground[25] to annul the finding of
probable cause for murder, there is no practical use or value in abrogating the concluded proceedings and retrying
the case under the original Information for homicide just to arrive, more likely or even definitely, at the same
conviction of homicide. Mootness would have also set in had petitioner been convicted of murder, for proof beyond
reasonable doubt, which is much higher than probable cause, would have been established in that instance.
 
Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to resolve
the legal issues in order to formulate controlling principles to guide the bench, bar and public. [26] In the present case,
there is compelling reason to clarify the remedies available  before  and after  the filing of an information in cases
subject of inquest.
 
After going over into the substance of the petition and the assailed issuances, the Court finds no reversible
error on the part of the appellate court in finding no grave abuse of discretion in the issuance of the four trial court
Orders.
 
In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to seek
from the trial court an investigation or reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without a warrant, petitioner contends that the
remedy of preliminary investigation belongs only to the accused.
 
The contention lacks merit.
 
Section 6,[27] Rule 112 of the Rules of Court reads:

 
When a person is lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor without need of
such investigation provided an inquest has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party
or a peace officer directly with the proper court on the basis of the affidavit of the offended party or
arresting officer or person.
 
Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125
of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the
waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from
its inception.
 

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After the filing of the complaint or information in court without a preliminary investigation, the

accused may, within five (5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)
 
 
A preliminary investigation is required before the filing of a complaint or information for an offense where
the penalty prescribed by law is at least four years, two months and one day without regard to fine. [28] As an
exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a
warrant[29]involving such type of offense, so long as an inquest, where available, has been conducted. [30]
 
Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal
cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the
purpose of determining whether said persons should remain under custody and correspondingly be charged in
court.[31]
 
It is imperative to first take a closer look at the predicament of both the arrested person and the private
complainant during the brief period of inquest, to grasp the respective remedies available to them before and after
the filing of a complaint or information in court.
 
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may
proceed in coordinating with the arresting officer and the inquest officer during the latters conduct of
inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary investigation, provided he
duly signs a waiver of any objection against delay in his delivery to the proper judicial authorities under Article 125
of the Revised Penal Code. For obvious reasons, this remedy is not available to the private complainant since he
cannot waive what he does not have. The benefit of the provisions of Article 125, which requires the filing of a
complaint or information with the proper judicial authorities within the applicable period, [32] belongs to the arrested
person.
 
The accelerated process of inquest, owing to its summary nature and the attendant risk of running against
Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested
person.[33] Notably, the rules on inquest do not provide for a motion for reconsideration. [34]
 
Contrary to petitioners position that private complainant should have appealed to the DOJ Secretary, such
remedy is not immediately available in cases subject of inquest.
 
Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition by a proper party under such
rules as the Department of Justice may prescribe. [35] The rule referred to is the 2000 National Prosecution Service
Rule on Appeal,[36] Section 1 of which provides that the Rule shall apply to appeals from resolutions x x x in  cases
subject of preliminary investigation/ reinvestigation. In cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary.
 

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In case the inquest proceedings yield no probable cause, the private complainant may pursue the case
through the regular course of a preliminary investigation.
 
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with
another opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The
Rules of Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke,
as respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation.
 
The Court holds that the private complainant can move for reinvestigation, subject to and in light of the
ensuing disquisition.
 
All criminal actions commenced by a complaint or information shall be prosecuted under the direction and
control of the public prosecutor.[37] The private complainant in a criminal case is merely a witness and not a party to
the case and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court,
the proper party for that being the public prosecutor who has the control of the prosecution of the case. [38] Thus, in
cases where the private complainant is allowed to intervene by counsel in the criminal action, [39] and is granted the
authority to prosecute,[40] the private complainant, by counsel and with the conformity of the public prosecutor, can
file a motion for reinvestigation.
 
In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must examine the
Information vis--vis the resolution of the investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and substance.[41]

 
 
 
x x x Since no evidence has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary investigation. Of course, that fact may
be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can
initially determine the same. That is why such error need not be manifest or evident, nor is it
required that such nuances as offenses includible in the offense charged be taken into account. It
necessarily follows, therefore, that the prosecutor can and should institute remedial
measures[.][42] (emphasis and underscoring supplied)

 
The prosecution of crimes appertains to the executive department of the government whose principal
power and responsibility is to see that our laws are faithfully executed.  A necessary component of this power to
execute our laws is the right to prosecute their violators.  The right to prosecute vests the prosecutor with a wide
range of discretion the discretion of what and whom to charge, the exercise of which depends on a smorgasbord of
factors which are best appreciated by prosecutors.[43]
 
The prosecutions discretion is not boundless or infinite, however. [44] The standing principle is that once an
information is filed in court, any remedial measure such as a reinvestigation must be addressed to the sound
discretion of the court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in one case that:
 
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The rule is now well settled that once a complaint or information is filed in court, any
disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused,
rests in the sound discretion of the court. Although the prosecutor retains the direction and control of
the prosecution of criminal cases even when the case is already in court, he cannot impose his
opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem proper thereafter

should be addressed to the court for its consideration and approval. 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.
 
xxxx
 
In such an instance, before a re-investigation of the case may be conducted by the public
prosecutor, the permission or consent of the court must be secured. If after such re-investigation the
prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the
case, such proposed course of action may be taken but shall likewise be addressed to the sound
discretion of the court.[46] (underscoring supplied)

 
While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to be preferred to a reinvestigation,
the Court therein recognized that a trial court may, where the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.
 
Once the trial court grants the prosecutions motion for reinvestigation, the former is deemed to have
deferred to the authority of the prosecutorial arm of the Government.  Having brought the case back to the drawing
board, the prosecution is thus equipped with discretion wide and far reaching regarding the disposition thereof,
[48]
subject to the trial courts approval of the resulting proposed course of action.
 
Since a reinvestigation may entail a modification of the criminal information as what happened in the
present case, the Courts holding is bolstered by the rule on amendment of an information under Section 14, Rule
110 of the Rules of Court:
 
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.
 
However, any amendment before plea, which downgrades the nature of the offense
charged in or excludes any accused from the complaint or information, can be made only upon
motion by the prosecutor, with notice to the offended party and with leave of court.  The court shall
state its reasons in resolving the motion and copies of its order shall be furnished all parties,
especially the offended party.
 
If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the filing of a new
one charging the proper offense in accordance with section 11, Rule 119, provided the accused
would not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (emphasis supplied)

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In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information may be
made without leave of court.[49] After the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused. [50]
 
It must be clarified though that not all defects in an information are curable by amendment prior to entry of
plea. An information which is void ab initio cannot be amended to obviate a ground for quashal. [51] An amendment
which operates to vest jurisdiction upon the trial court is likewise impermissible. [52]
 
 
 
 
Considering the general rule that an information may be amended even in substance and even without
leave of court at any time before entry of plea, does it mean that the conduct of a reinvestigation at that stage is a
mere superfluity?
 
It is not.
 
Any remedial measure springing from the reinvestigation be it a complete disposition or an intermediate
modification[53] of the charge is eventually addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for purposes of buttressing the appropriate motion to be filed in court.
 
More importantly, reinvestigation is required in cases involving a substantial amendment of the information. Due
process of law demands that no substantial amendment of an information may be admitted without conducting
another or a new preliminary investigation. In Matalam v. The 2nd Division of the Sandiganbayan, [54] the Court ruled
that a substantial amendment in an information entitles an accused to another preliminary investigation, unless the
amended information contains a charge related to or is included in the original Information.
 
The question to be resolved is whether the amendment of the Information from homicide to murder is considered a
substantial amendment, which would make it not just a right but a duty of the prosecution to ask for a preliminary
investigation.
 
The Court answers in the affirmative.
 
A substantial amendment consists of the recital of facts constituting the offense charged
and determinative of the jurisdiction of the court. All other matters are merely of form. The
following have been held to be mere formal amendments: (1) new allegations which relate only to
the range of the penalty that the court might impose in the event of conviction; (2) an amendment
which does not charge another offense different or distinct from that charged in the original one; (3)
additional allegations which do not alter the prosecutions theory of the case so as to cause surprise
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to the accused and affect the form of defense he has or will assume; (4) an amendment which does
not adversely affect any substantial right of the accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and not to introduce new and material facts,
and merely states with additional precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime charged.

 
The test as to whether a defendant is prejudiced by the amendment is whether a defense under the
information as it originally stood would be available after the amendment is made, and  whether any
evidence defendant might have would be equally applicable to the information in the one form as in
the other. An amendment to an information which does not change the nature of the crime alleged
therein does not affect the essence of the offense or cause surprise or deprive the accused of an
opportunity to meet the new averment had each been held to be one of form and not of substance.
[55]
 (emphasis and underscoring supplied)

 
Matalam adds that the mere fact that the two charges are related does not necessarily or automatically
deprive the accused of his right to another preliminary investigation.Notatu dignum is the fact that both the original
Information and the amended Information in Matalam were similarly charging the accused with violation of Section
3(e) of the Anti-Graft and Corrupt Practices Act.
 
In one case,[56] it was squarely held that the amendment of the Information from homicide to murder is one
of substance with very serious consequences. [57] The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new and material element of the offense, petitioner should be
given the chance to adduce evidence on the matter. Not being merely clarificatory, the amendment essentially
varies the prosecutions original theory of the case and certainly affects not just the form but the weight of defense
to be mustered by petitioner.
 
The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v. Cajigal,[59]  wherein the amendment of the
caption of the Information from homicide to murder was not considered substantial because there was no real
change in the recital of facts constituting the offense charged as alleged in the body of the Information, as the
allegations of qualifying circumstances were already clearly embedded in the original Information. Buhat pointed
out that the original Information for homicide already alleged the use of superior strength, while  Pacoy states that
the averments in the amended Information for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the present case.
 
Considering that another or a new preliminary investigation is required, the fact that what was conducted in the
present case was a reinvestigation does not invalidate the substantial amendment of the Information.  There is no
substantial distinction between a preliminary investigation and a reinvestigation since both are conducted in the
same manner and for the same objective of determining whether there exists 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.[60] What is essential is that petitioner was placed on guard to defend himself from the charge of
murder[61] after the claimed circumstances were made known to him as early as the first motion.
 

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Petitioner did not, however, make much of the opportunity to present countervailing evidence on the proposed
amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v. Court of Appeals states that the
rules do not even require, as a condition sine qua non  to the validity of a preliminary investigation, the presence of
the respondent as long as efforts to reach him were made and an opportunity to controvert the complainants
evidence was accorded him.[62]
 
In his second assignment of error, petitioner basically assails the hurried issuance of the last two assailed
RTC Orders despite the pendency before the appellate court of the petition for certiorari challenging the first two
trial court Orders allowing a reinvestigation.
 
The Rules categorically state that the petition shall not interrupt the course of the principal case unless a
temporary retraining order or a writ of preliminary injunction has been issued. [63] The appellate court, by Resolution
of February 15, 2007,[64] denied petitioners application for a temporary restraining order and writ of preliminary
injunction. Supplementary efforts to seek injunctive reliefs proved futile. [65] The appellate court thus did not err in
finding no grave abuse of discretion on the part of the trial court when it proceeded with the case and eventually
arraigned the accused on March 21, 2007, there being no injunction order from the appellate court. Moreover,
petitioner opted to forego appealing to the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment. [66]
 
Regarding petitioners protestations of haste, suffice to state that the pace in resolving incidents of the case
is not per se an indication of bias. In Santos-Concio v. Department of Justice,[67] the Court held:

 
Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of functions. For ones prompt dispatch may be anothers
undue haste. The orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each case.
 
The presumption of regularity includes the public officers official actuations in all phases of
work. Consistent with such presumption, it was incumbent upon petitioners to present contradictory
evidence other than a mere tallying of days or numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating Panels initial task cannot be relegated as
shoddy or shady without discounting the presumably regular performance of not just one but five
state prosecutors.[68]

 
 
There is no ground for petitioners protestations against the DOJ Secretarys sudden designation of Senior State
Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case [69] and the latters
conformity to the motion for reinvestigation.
 
In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation.[70] There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice [71] who is vested with the prerogative to appoint a special

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prosecutor or designate an acting prosecutor to handle a particular case, which broad power of control has been
recognized by jurisprudence.[72]
 
As for the trial courts ignoring the DOJ Secretarys uncontested statements to the media which aired his
opinion that if the assailant merely intended to maim and not to kill the victim, one bullet would have  sufficed the
DOJ Secretary reportedly uttered that the filing of the case of homicide against ano against Leviste lintek naman
eh  I told you to watch over that case there should be a report about the ballistics, about the paraffin, etc., then thats
not a complete investigation, thats why you should use that as a ground no abuse of discretion, much less a grave
one, can be imputed to it.
 
The statements of the DOJ Secretary do not evince a determination to file the Information even in the
absence of probable cause.[73] On the contrary, the remarks merely underscored the importance of securing basic
investigative reports to support a finding of probable cause. The original Resolution even recognized that probable
cause for the crime of murder cannot be determined based on the evidence obtained [ u]nless and until a more
thorough investigation is conducted and eyewitness/es [is/]are presented in evidence[.] [74]
 
The trial court concluded that the wound sustained by the victim at the back of his head, the absence of paraffin test
and ballistic examination, and the handling of physical evidence, [75] as rationalized by the prosecution in its motion,
are sufficient circumstances that require further inquiry.
 
That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not affect the
prior determination of probable cause because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal case. [76]
 
In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a hearing
for judicial determination of probable cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.
 
Petitioners argument is specious.
 
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 that function has been correctly discharged by the public prosecutor, i.e., whether 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.[77]
 

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The judicial determination of probable cause 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. [78] Paragraph (a), Section 5,[79] Rule
112 of the Rules of Court outlines the procedure to be followed by the RTC.
 
To move the court to conduct a judicial determination of probable cause is a mere superfluity, for with or
without such motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the
supporting evidence. In fact, the task of the presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. [80]

 
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge
to satisfy himself of the existence of probable cause. But 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 prosecutor
regarding the existence of probable cause, and on the basis thereof, he may already make a
personal determination of the existence of probable cause; and (2) if he is not satisfied that
probable cause exists, he may disregard the prosecutors 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.[81] (emphasis and underscoring supplied)

 
The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of
arrest of the accused before any warrant may be issued. [82]Petitioner thus cannot, as a matter of right, insist on a
hearing for judicial determination of probable cause. Certainly, petitioner cannot determine beforehand how cursory
or exhaustive the [judge's] examination of the records should be [since t]he extent of the judges examination
depends on the exercise of his sound discretion as the circumstances of the case require. [83] In one case, the Court
emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the
judge must determine the presence or absence of probable cause within such periods. The
Sandiganbayans determination of probable cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be stymied and distracted from his determination of
probable cause by needless motions for determination of probable cause filed by the
accused.[84] (emphasis and underscoring supplied)

 
 
Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that would
qualify the crime from homicide to murder.
 
The allegation of lack of substantial or material new evidence deserves no credence, because new pieces
of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no new matter
or evidence was presented during the reinvestigation of the case. It should
 
 

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be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters
or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor to review and re-
evaluate its findings and the evidence already submitted. [85]
 
Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a
petition for review on certiorari since this Court is not a trier of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or presence of probable cause, as there exists no exceptional
circumstances to warrant a factual review.[86]
 
In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court is
narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions and
issues beyond its competence, such as an error of judgment. [87] The courts duty in the pertinent case is confined to
determining whether the executive and judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed in the discharge of
lawful functions, this does not render the act amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. [88]
 
 

 
 
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in
CA-G.R. SP No. 97761 are AFFIRMED.
 
SO ORDERED.

21. Arroyo v. Department of Justice, September 18, 2012

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 199082               September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner, 

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as
Secretary of the Department of Justice; HON. SIXTO BRILLANTES, .JR., in his capacity as Chairperson of
the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE
and FACT-FINDING TEAM, Respondents.

x-----------------------x
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 Page 191 of 245

G.R. No. 199085

BENJAMIN S. ABALOS, SR., Petitioner, 

vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his
capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO,
ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND
MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.

x-----------------------x

G.R. No.199118

GLORIA MACAPAGAL-ARROYO, Petitioner, 
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF
JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING
TEAM, Respondents.

DECISION

PERALTA, J.:

The Court is vested with the constitutional mandate to resolve justiciable controversies by applying the rule of law
with due deference to the right to due process, irrespective of the standing in society of the parties involved. It is an
assurance that in this jurisdiction, the wheels of justice turn unimpeded by public opinion or clamor, but only for the
ultimate end of giving each and every member of society his just due without distinction.

Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and Prohibition under
Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos,
Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal

Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec) Resolution No.
9266 "In the Matter of the Commission on Elections and Department of Justice Joint Investigation on the Alleged
Election Offenses Committed during the 2004 and 2007 Elections Pursuant to Law" 1 dated August 2, 2011; (2) Joint
Order No. 001-2011 (Joint Order) "Creating and Constituting a Joint DOJ-Comelec Preliminary Investigation
Committee [Joint Committee] and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and

Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary Investigation on
the Alleged Election Fraud in the 2004 and 2007 National Elections (Joint Committee Rules of Procedure) 3 dated
August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October 20, 2011. 4 The consolidated
petitions and supplemental petitions likewise assail the validity of the proceedings undertaken pursuant to the
aforesaid issuances.

The Antecedents

Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the occurrence of
massive electoral fraud and manipulation of election results in the 2004 and 2007 National Elections, on August 2,
2011, the Comelec issued Resolution No. 9266 approving the creation of a committee jointly with the Department of
Justice (DOJ), which shall conduct preliminary investigation on the alleged election offenses and anomalies
committed during the 2004 and 2007 elections.5
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 Page 192 of 245

On August 4, 2011, the Secretary of Justice issued Department Order No. 640 6 naming three (3) of its prosecutors
to the Joint Committee.

On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint
Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation
cases. The Joint Committee and the Fact-Finding Team are composed of officials from the DOJ and the Comelec.
Section 2 of the Joint Order lays down the mandate of the Joint Committee, to wit:

Section 2. Mandate. – The Committee shall conduct the necessary preliminary investigation on the basis of the
evidence gathered and the charges recommended by the Fact-Finding Team created and referred to in Section 4
hereof. Resolutions finding probable cause for election offenses, defined and penalized under the Omnibus
Election Code and other election laws shall be approved by the Comelec in accordance with the Comelec Rules of
Procedure. For other offenses, or those not covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the appropriate courts. 7

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

a) Gather and document reports, intelligence information, and investigative leads from official as well as
unofficial sources and informants;

b) Conduct interviews, record testimonies, take affidavits of witnesses, and collate material and relevant
documentary evidence, such as, but not limited to, election documents used in the 2004 and 2007 national
elections. For security reasons, or to protect the identities of informants, the Fact-Finding Team may
conduct interviews or document testimonies discreetly;

c) Assess and evaluate affidavits already executed and other documentary evidence submitted or may be
submitted to the Fact-Finding Team and/or Committee;

d) Identify the offenders, their offenses and the manner of their commission, individually or in conspiracy,
and the provisions of election and general criminal laws violated, establish evidence for individual criminal
and administrative liability and prosecution, and prepare the necessary documentation, such as complaints
and charge sheets for the initiation of preliminary investigation proceedings against said individuals to be
conducted by the Committee;

e) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the Comelec periodic
reports and recommendations, supported by real, testimonial and documentary evidence, which may then
serve as the Committee’s basis for immediately commencing appropriate preliminary investigation
proceedings, as provided under Section 6 of this Joint Order; and

f) Upon the termination of its investigation, make a full and final report to the Committee, the Secretary of
Justice, and the Chairman of the Comelec.9

Pursuant to Section 710 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of
Procedure.

The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report would be the
electoral fraud and manipulation of election results allegedly committed during the May 14, 2007 elections. Thus, in
its Initial Report11 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the
May 14, 2007 senatorial elections in the provinces of North and South Cotabato and Maguindanao were indeed
perpetrated.12 The Fact-Finding Team recommended that petitioner Abalos and ten (10) others 13 be subjected to
preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South
Cotabato. Twenty-six (26)14persons, including petitioners GMA and Abalos, were likewise recommended for
preliminary investigation for electoral sabotage for manipulating the election results in Maguindanao. 15 Several
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 Page 193 of 245

persons were also recommended to be charged administratively, while others, 16 including petitioner Mike Arroyo,
were recommended to be subjected to further investigation. 17 The case resulting from the investigation of the Fact-
Finding Team was docketed as DOJ-Comelec Case No. 001-2011.

Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a Complaint-Affidavit 18 for
Electoral Sabotage against petitioners and twelve others19 and several John Does and Jane Does. The case was
docketed as DOJ-Comelec Case No. 002-2011.

On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos.
001-2011 and 002-2011.20 On November 3, 2011, petitioners, through counsel, appeared before the Joint
Committee.21 On that preliminary hearing, the Joint Committee consolidated the two DOJ-Comelec cases.
Respondents therein were likewise ordered to submit their Counter-Affidavits by November 14, 2011. 22

Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the
Joint Panel.23The petitions were eventually consolidated.

On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings 24 before the Joint Committee, in
view of the pendency of his petition before the Court. On the same day, petitioner GMA filed before the Joint
Committee an Omnibus Motion Ad Cautelam25 to require Senator Pimentel to furnish her with documents referred to
in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage.
GMA contended that for the crime of electoral sabotage to be established, there is a need to present election
documents allegedly tampered which resulted in the increase or decrease in the number of votes of local and
national candidates.26 GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt
of the requested documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante
Ad Cautelam),28 in view of the pendency of his petition brought before the Court.

In an Order29 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA
subsequently filed a motion for reconsideration.30

On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the
Comelec.31On November 18, 2011, after conducting a special session, the Comelec en banc issued a
Resolution32 approving and adopting the Joint Resolution subject to modifications. The dispositive portion of the
Comelec Resolution reads:

WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary Investigation
Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon the
recommendation of the COMELEC’s own representatives in the Committee, is hereby APPROVED and ADOPTED,
subject to the following MODIFICATIONS:

1. That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of R.A. 9369,
amending Section 27 (b) of R.A. 6646, be filed against GLORIA MACAPAGAL-ARROYO, BENJAMIN
ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER REYES;

2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ
and NORIE K. UNAS be subjected to further investigation;

3. That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO AGRA, ANDREI
BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a BUTCH, be
DISMISSED for insufficiency of evidence to establish probable cause;

4. That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S.
AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN, SUSAN U.
CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN
L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P.
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 Page 194 of 245

HANGKAL, CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be administratively charged be

subjected to further review by this Commission to determine the appropriate charge/s that may be filed
against them;

5. That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and YOGIE G.
MARTIRIZAR be REJECTED by reason of the pendency of their respective cases before the Regional Trial
Court of Pasay (Branch 114) and this Commission for the same offense under consideration.

In the higher interest of justice and by reason of manifest attempts to frustrate the government’s right to prosecute
and to obtain speedy disposition of the present case pending before the Commission, the Law Department and/or
any COMELEC legal officers as may be authorized by this Commission is hereby ORDERED to IMMEDIATELY
PREPARE and FILE the necessary Information/s before the appropriate court/s

SO ORDERED.33 (Emphasis supplied.)

On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the Regional Trial Court
(RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H.
Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646,
docketed as Criminal Case No. RPSY-11-04432-CR. 34 The case was raffled to Branch 112 and the corresponding
Warrant of Arrest was issued which was served on GMA on the same day. 35

On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam 36 with leave to
allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of
arrest and a Hold Departure Order, and to proceed to judicial determination of probable cause. She, likewise, filed
with the Comelec a Motion to Vacate Ad Cautelam37 praying that its Resolution be vacated for being null and void.
The RTC nonetheless issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail
which was granted.

Issues

In G.R. No. 199082, petitioner Arroyo relies on the following grounds:

A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR WITH THE DUE
PROCESS AND EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN CREATED
WITH THE SOLE END IN VIEW OF INVESTIGATING AND PROSECUTING CERTAIN PERSONS AND
INCIDENTS ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS TO THE
EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION
AND COMPANION CASE.

B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT PRELIMINARY

INVESTIGATION.

C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION ON ELECTIONS -
A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE – A
POLITICAL AGENT OF THE EXECUTIVE – DEMOLISHES THE INDEPENDENCE OF THE
COMMISSION ON ELECTIONS AS PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF
THE CONSTITUTION.

D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS OF THE

PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE COMELEC, AND
MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE FILED AGAINST PETITIONER AND
HIS FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011, THE PROCEEDINGS THEREOF
SHOULD BE ENJOINED FOR BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND
RELATED CASES.

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 Page 195 of 245

E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES UPON

PETITIONER’S RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL.

F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE ASSUMED
JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT
COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT COMMITTEE. 38

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

I.

DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM
AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT
TO EQUAL PROTECTION OF THE LAW?

II.

DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW?

III.

DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS BY
CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION
COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE LEGISLATURE AND THE
REGIONAL TRIAL COURT?

IV.

DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION

COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY
INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES WHICH THE COMELEC HAD
ALREADY TAKEN COGNIZANCE OF?39

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

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

II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL MANDATE "TO
INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION
LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION FRAUDS, OFFENSES, AND
MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES) IN FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT
JUSTICE SECRETARY DE LIMA.

III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE RULES HAVE NOT
BEEN PUBLISHED PURSUANT TO TAÑADA V. TUVERA, G.R. No. L-63915 (29 DECEMBER 1986).
AFTER ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL
PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC) 40

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 Page 196 of 245

We deferred the resolution of petitioners’ Motion for the Issuance of a TRO and, instead, required the respondents
to comment on the petitions.41

We likewise scheduled the consolidated cases for oral argument for which the parties were directed to limit their
respective discussions to the following issues:

I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC Preliminary
Investigation Committee and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases" is constitutional in light of the following:

A. The due process clause of the 1987 Constitution

B. The equal protection clause of the 1987 Constitution

C. The principle of separation of powers

D. The independence of the COMELEC as a constitutional body

II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary investigation jointly with the
DOJ.

A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team and Preliminary
Investigation Committee, and the COMELEC in the conduct of the preliminary investigation and approval of the
Joint Panel’s Resolution.42

The Court, thereafter, required the parties to submit their respective Memoranda. 43

The Court’s Ruling

Procedural Issues

Respondents claim that Mike Arroyo’s petition is moot and that of GMA is moot and academic. They explain that
the Mike Arroyo petition presents no actual controversy that necessitates the exercise by the Court of its power of
judicial review, considering that he was not among those indicted for electoral sabotage in the 2007 national
elections as the Comelec dismissed the case against him for insufficiency of evidence. 44 Anent the 2004 national
elections, the Fact-Finding Team is yet to complete its investigation so Mike Arroyo’s apprehensions are merely
speculative and anticipatory.45 As to the GMA petition, respondents aver that any judgment of the Court will have no
practical legal effect because an Information has already been filed against her in Branch 112, RTC of Pasay
City.46 With the filing of the Information, the RTC has already acquired jurisdiction over the case, including all issues
relating to the constitutionality or legality of her preliminary investigation. 47 Respondents also claim that the issues
relating to the constitutionality and validity of the conduct of the preliminary investigation of GMA are best left to the
trial court, considering that it involves questions of fact. 48 Respondents add that considering that the RTC has
concurrent jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49

We do not agree.

Mootness

It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual case or
controversy, that is, one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial resolution.50 The case must not be moot or academic or based on extra-legal or other similar considerations
not cognizable by a court of justice.51

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A case becomes moot and academic when it ceases to present a justiciable controversy so that a declaration on
the issue would be of no practical use or value.52 However, a case should not be dismissed simply because one of
the issues raised therein had become moot and academic by the onset of a supervening event, whether intended
or incidental, if there are other causes which need to be resolved after trial. 53

Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint Resolution by
the Joint Committee and the approval thereof by the Comelec. It must be recalled that the main issues in the three
petitions before us are the constitutionality and legality of the creation of the Joint Committee and the Fact-Finding
Team as well as the proceedings undertaken pursuant thereto. The assailed Joint Order specifically provides that
the Joint Committee was created for purposes of investigating the alleged massive electoral fraud during the 2004
and 2007 national elections. However, in the Fact-Finding Team’s Initial Report, the team specifically agreed that
the report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011 Resolution,
the Comelec, while directing the filing of information against petitioners Abalos and GMA, ordered that further
investigations be conducted against the other respondents therein. Apparently, the Fact-Finding Team’s and Joint

Committee’s respective mandates have not been fulfilled and they are, therefore, bound to continue discharging
their duties set forth in the assailed Joint Order. Moreover, petitioners question the validity of the proceedings
undertaken by the Fact-Finding Team and the Joint Committee leading to the filing of information, on constitutional
grounds. We are not, therefore, barred from deciding on the petitions simply by the occurrence of the supervening
events of filing an information and dismissal of the charges.

Jurisdiction over the validity of the

conduct of the preliminary investigation

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

In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the issuance of a warrant of arrest, the
Court could not ignore the undue haste in the filing of the information and the inordinate interest of the government
in filing the same. Thus, this Court took time to determine whether or not there was, indeed, probable cause to
warrant the filing of information. This, notwithstanding the fact that information had been filed and a warrant of
arrest had been issued. Petitioners therein came directly to this Court and sought relief to rectify the injustice that
they suffered.

Hierarchy of courts

Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of courts. This
principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with
a higher court.57 The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals and the RTC, a direct
invocation of this Court’s jurisdiction is allowed when there are special and important reasons therefor, clearly and
especially set out in the petition, as in the present case. 58 In the consolidated petitions, petitioners invoke exemption
from the observance of the rule on hierarchy of courts in keeping with the Court’s duty to determine whether or not
the other branches of government have kept themselves within the limits of the Constitution and the laws, and that
they have not abused the discretion given to them.59

It is noteworthy that the consolidated petitions assail the constitutionality of issuances and resolutions of the DOJ
and the Comelec. The general rule is that this Court shall exercise only appellate jurisdiction over cases involving
the constitutionality of a statute, treaty or regulation.

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However, such rule is subject to exception, that is, in circumstances where the Court believes that resolving the
issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately
affects the social, economic, and moral well-being of the people. 60

This case falls within the exception. An expeditious resolution of the issues raised in the petitions is necessary.
Besides, the Court has entertained a direct resort to the Court without the requisite motion for reconsideration filed
below or without exhaustion of administrative remedies where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the government or of the petitioners and when there
is an alleged violation of due process, as in the present case. 61 We apply the same relaxation of the Rules in the
present case and, thus, entertain direct resort to this Court.

Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee

Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the Comelec. Paragraph
(6) thereof vests in the Comelec the power to:

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.

This was an important innovation introduced by the 1987 Constitution, because the above-quoted provision was not
in the 1935 and 1973 Constitutions.62

The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct to the
enforcement and administration of all election laws is intended to enable the Comelec to effectively insure to the
people the free, orderly, and honest conduct of elections. The failure of the Comelec to exercise this power could
result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of
every qualified citizen to vote.63

The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus Election Code, to wit:

Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive
power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the
same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within four months from his filing, the
complainant may file the complaint with the office of the fiscal [public prosecutor], or with the Ministry Department of
Justice for proper investigation and prosecution, if warranted.

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

Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary investigation had
been lodged with the Comelec, the prosecutors had been conducting preliminary investigations pursuant to the
continuing delegated authority given by the Comelec. The reason for this delegation of authority has been
explained in Commission on Elections v. Español:67

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The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt investigation and
dispensation of election cases as an indispensable part of the task of securing fine, orderly, honest, peaceful and
credible elections. Enfeebled by lack of funds and the magnitude of its workload, the petitioner does not have a
sufficient number of legal officers to conduct such investigation and to prosecute such cases. 68

Moreover, as we acknowledged in People v. Basilla,69 the prompt and fair investigation and prosecution of election
offenses committed before or in the course of nationwide elections would simply not be possible without the
assistance of provincial and city fiscals prosecutors and their assistants and staff members, and of the state
prosecutors of the DOJ.70

Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369, 71 which reads:

Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:

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

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

It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act necessary to
ensure the prompt and fair investigation and prosecution of election offenses. Pursuant to the above constitutional
and statutory provisions, and as will be explained further below, we find no impediment for the Comelec and the
DOJ to create the Joint Committee and Fact-Finding Team for the purpose of conducting a thorough investigation
of the alleged massive electoral fraud and the manipulation of election results in the 2004 and 2007 national
elections relating in particular to the presidential and senatorial elections. 73

Constitutionality of Joint-Order No. 001-2011

A. Equal Protection Clause

Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is in violation of the equal
protection clause of the Constitution because its sole purpose is the investigation and prosecution of certain
persons and incidents. They argue that there is no substantial distinction between the allegations of massive
electoral fraud in 2004 and 2007, on the one hand, and previous and subsequent national elections, on the other
hand; and no substantial distinction between petitioners and the other persons or public officials who might have
been involved in previous election offenses. They insist that the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the Arroyo Administration. To bolster their claim, petitioners
explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine Truth
Commission) which this Court had already nullified for being

violative of the equal protection clause.

Respondents, however, refute the above contentions and argue that the wide array of the possible election
offenses and broad spectrum of individuals who may have committed them, if any, immediately negate the
assertion that the assailed orders are aimed only at the officials of the Arroyo Administration.

We agree with the respondents.

The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads:

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Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.74

The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of 2010: 75

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

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

Unlike the matter addressed by the Court’s ruling in Biraogo v. Philippine Truth Commission of 2010, Joint Order
No. 001-2011 cannot be nullified on the ground that it singles out the officials of the Arroyo Administration and,
therefore, it infringes the equal protection clause. The Philippine Truth Commission of 2010 was expressly created
for the purpose of investigating alleged graft and corruption during the Arroyo Administration since Executive Order
No. 177 specifically referred to the "previous administration"; while the Joint Committee was created for the purpose
of conducting preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and
Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to
GMA as there were public officers who were investigated upon in connection with their acts in the performance of
their official duties. Private individuals were also subjected to the investigation by the Joint Committee.

The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate discrimination
and oppression based on inequality. Recognizing the existence of real differences among men, it does not demand
absolute equality. It merely requires that all persons under like circumstances and conditions shall be treated alike
both as to privileges conferred and liabilities enforced. 78

We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by the
Constitution and by law and thus may, for every particular investigation, whether commenced by complaint or on its
own initiative, decide how best to pursue each investigation. Since the Office of the Ombudsman is granted such
latitude, its varying treatment of similarly situated investigations cannot by itself be considered a violation of any of
the parties’ rights to the equal protection of the laws. 79 This same doctrine should likewise apply in the present case.

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

Moreover, as has been practiced in the past, complaints for violations of election laws may be filed either with the
Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints for election offenses. 82

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Pursuant to law and the Comelec’s own Rules, investigations may be conducted either by the Comelec itself
through its law department or through the prosecutors of the DOJ. These varying procedures and treatment do not,
however, mean that respondents are not treated alike. Thus, petitioners’ insistence of infringement of their
constitutional right to equal protection of the law is misplaced.

B. Due Process

Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial judge because it
is all at once the evidence-gatherer, prosecutor and judge. They explain that since the Fact-Finding Team has
found probable cause to subject them to preliminary investigation, it is impossible for the Joint Committee to arrive
at an opposite conclusion. Petitioners likewise express doubts of any possibility that the Joint Committee will be fair
and impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly expressed prejudgment
against petitioners through their statements captured by the media.

For their part, respondents contend that petitioners failed to present proof that the President of the Philippines,
Secretary of Justice, and Chairman of the Comelec actually made the statements allegedly prejudging their case
and in the context in which they interpreted them. They likewise contend that assuming that said statements were
made, there was no showing that Secretary De Lima had tried to intervene in the investigation to influence its
outcome nor was it proven that the Joint Committee itself had prejudged the case. Lastly, they point out that Joint
Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint Committee, with their respective
mandates. Hence, they cannot be considered as one.

We find for respondents.

It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the requirements of
both substantive and procedural due process.83 Preliminary investigation is considered as a judicial proceeding
wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer. 84 The
authority of a prosecutor or investigating officer duly empowered to preside over or to conduct a preliminary
investigation is no less than that of a municipal judge or even an RTC Judge. 85 Thus, as emphasized by the Court in
Ladlad v. Velasco:86

x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression
that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien
to, or subversive of, the basic and fundamental objective of serving the interest of justice evenhandedly, without
fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may public's perception of the impartiality of the prosecutor be enhanced. 87

In this case, as correctly pointed out by respondents, there was no showing that the statements claimed to have
prejudged the case against petitioners were made by Secretary De Lima and Chairman Brillantes or were in the
prejudicial context in which petitioners claimed the statements were made. A reading of the statements allegedly
made by them reveals that they were just responding to hypothetical questions in the event that probable cause
would eventually be found by the Joint Committee.

More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to conduct the
requisite preliminary investigation against petitioners, made biased statements that would convey to the public that
the members were favoring a particular party. Neither did the petitioners show that the President of the Philippines,
the Secretary of Justice or the Chairman of the Comelec intervened in the conduct of the preliminary investigation
or exerted undue pressure on their subordinates to tailor their decision with their public declarations and adhere to
a pre-determined result.88 Moreover, insofar as the Comelec is concerned, it must be emphasized that the
constitutional body is collegial. The act of the head of a collegial body cannot be considered as that of the entire
body itself.89 In equating the alleged bias of the above-named officials with that of the Joint Committee, there would
be no arm of the government credible enough to conduct a preliminary investigation. 90

It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the Fact-Finding Team
tasked to gather real, documentary and testimonial evidence which can be utilized in the preliminary investigation to

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be conducted by the Joint Committee; and (2) the Joint Committee mandated to conduct preliminary investigation. It
is, therefore, inaccurate to say that there is only one body which acted as evidence-gatherer, prosecutor and judge.

C. Separation of powers

Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation of its own
Rules of Procedure, and the source of funding for its operation. It is their position that the power of the DOJ to
investigate the commission of crimes and the Comelec’s constitutional mandate to investigate and prosecute
violations of election laws do not include the power to create a new public office in the guise of a joint committee.
Thus, in creating the Joint Panel, the DOJ and the Comelec encroached upon the power of the Legislature to create
public office.

Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new public offices,
but merely collaborations between two existing government agencies sharing concurrent jurisdiction. This is shown
by the fact that the members of the Joint Panel are existing officers of the DOJ and the Comelec who exercise
duties and functions that are already vested in them.

Again, we agree with respondents.

As clearly explained above, the Comelec is granted the power to investigate, and where appropriate, prosecute
cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful and credible elections. On
the other hand, the DOJ is mandated to administer the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the
correctional system.91 It is specifically empowered to "investigate the commission of crimes, prosecute offenders
and administer the probation and correction system."92 Also, the provincial or city prosecutors and their assistants,
as well as the national and regional state prosecutors, are specifically named as the officers authorized to conduct
preliminary investigation.93 Recently, the Comelec, through its duly authorized legal offices, is given the power,
concurrent with the other prosecuting arms of the government such as the DOJ, to conduct preliminary investigation
of all election offenses.94

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

D. Independence of the Comelec

Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its constitutional mandate to
investigate and, where appropriate, to prosecute cases of violation of election laws including acts or omissions
constituting election frauds, offenses, and malpractices in favor of the Executive Department acting through the
DOJ Secretary. Under the set- up, the Comelec personnel is placed under the supervision and control of the DOJ.
The chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and
has acceded to share its exercise of judgment and discretion with the Executive Branch.

We do not agree.

Section 1,95 Article IX-A of the 1987 Constitution expressly describes all the Constitutional Commissions as
independent. Although essentially executive in nature, they are not under the control of the President of the
Philippines in the discharge of their respective functions. 96 The Constitution envisions a truly independent Comelec
committed to ensure free, orderly, honest, peaceful, and credible elections and to serve as the guardian of the
people’s sacred right of suffrage – the citizenry’s vital weapon in effecting a peaceful change of government and in
achieving and promoting political stability. 97

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Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the exclusive authority to
investigate and prosecute election offenses. In the discharge of this exclusive power, the Comelec was given the
right to avail and, in fact, availed of the assistance of other prosecuting arms of the government such as the
prosecutors of the DOJ. By virtue of this continuing authority, the state prosecutors and the provincial or city
prosecutors were authorized to receive the complaint for election offense and delegate the conduct of investigation
to any of their assistants. The investigating prosecutor, in turn, would make a recommendation either to dismiss the
complaint or to file the information. This recommendation is subject to the approval of the state, provincial or city
prosecutor, who himself may file the information with the proper court if he finds sufficient cause to do so, subject,
however, to the accused’s right to appeal to the Comelec. 98

Moreover, during the past national and local elections, the Comelec issued Resolutions 99 requesting the Secretary
of Justice to assign prosecutors as members of Special Task Forces to assist the Comelec in the investigation and
prosecution of election offenses. These Special Task Forces were created because of the need for additional
lawyers to handle the investigation and prosecution of election offenses.

Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct preliminary
investigation. Otherwise, the prompt resolution of alleged election offenses will not be attained. This delegation of
power, otherwise known as deputation, has long been recognized and, in fact, been utilized as an effective means
of disposing of various election offense cases. Apparently, as mere deputies, the prosecutors played a vital role in
the conduct of preliminary investigation, in the resolution of complaints filed before them, and in the filing of the
informations with the proper court.

As pointed out by the Court in Barangay Association for National Advancement and Transparency (BANAT) Party-
List v. Commission on Elections,100 the grant of exclusive power to investigate and prosecute cases of election
offenses to the Comelec was not by virtue of the Constitution but by the Omnibus Election Code which was
eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election
offenses concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary information by virtue only of a delegated authority, they
now have better grounds to perform such function by virtue of the statutory grant of authority. If deputation was
justified because of lack of funds and legal officers to ensure prompt and fair investigation and prosecution of
election offenses, the same justification should be cited to justify the grant to the other prosecuting arms of the
government of such concurrent jurisdiction.

In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee. While the
composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily
follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable cause
for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure.
This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way
can we say that the Comelec has thereby abdicated its independence to the executive department.

The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute
election offenses is to give the Comelec all the necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible elections. 101 The Comelec should be allowed considerable
latitude in devising means and methods that will insure the accomplishment of the great objective for which it was
created.102 We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this Court should not interfere.103 Thus, Comelec Resolution No. 9266, approving the creation of
the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional body’s
independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election
offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and credible elections.

Although it belongs to the executive department, as the agency tasked to investigate crimes, prosecute offenders,
and administer the correctional system, the DOJ is likewise not barred from acting jointly with the Comelec. It must
be emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in conducting preliminary
investigation of election offenses. The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the
same subject matter.104 Contrary to the contention of the petitioners, there is no prohibition on simultaneous
exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint
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against a respondent initially with one office (such as the Comelec) for preliminary investigation which was
immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such
as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be
allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall
exercise jurisdiction to the exclusion of the others.105 As cogently held by the Court in Department of Justice v. Hon.
Liwag:106

To allow the same complaint to be filed successively before two or more investigative bodies would promote
multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and
defend his position before every agency or body where the same complaint was filed. This would lead hapless
litigants at a loss as to where to appear and plead their cause or defense.

There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising
jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents.

Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable
and limited resources of Government, in a duplication of proceedings already started with the Ombudsman. 107

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

Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the Comelec
involving Radam and Martirizar bars the creation of the Joint Committee for purposes of conducting another
preliminary investigation. In short, they claim that the exercise by the Comelec of its jurisdiction to investigate
excludes other bodies such as the DOJ and the Joint Committee from taking cognizance of the case. Petitioners
add that the investigation should have been conducted also by the Comelec as the 2007 cases of Radam and
Martirizar include several John Does and Jane Does.

We do not agree.

While the Comelec conducted the preliminary investigation against Radam, Martirizar and other unidentified
persons, it only pertains to election offenses allegedly committed in North and South Cotabato. On the other hand,
the preliminary investigation conducted by the Joint Committee (involving GMA) pertains to election offenses
supposedly committed in Maguindanao. More importantly, considering the broad power of the Comelec to choose
the means of fulfilling its duty of ensuring the prompt investigation and prosecution of election offenses as
discussed earlier, there is nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said
investigation. To reiterate, in no way can we consider this as an act abdicating the independence of the Comelec.

Publication Requirement

In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the Comelec is
governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to promulgate new Rules as may
be complementary to the DOJ and Comelec Rules.

As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the DOJ to exercise
powers which are already vested in them by the Constitution and other existing laws, it need not be published for it
to be valid and effective. A close examination of the Joint Committee’s Rules of Procedure, however, would show
that its provisions affect the public. Specifically, the following provisions of the Rules either restrict the rights of or
provide remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer

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entertain complaints from the public as soon as the Fact-Finding Team submits its final report, except for such
complaints involving offenses mentioned in the Fact-Finding Team’s Final Report"; (2) Section 2 states that "the
Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides that a Motion for
Reconsideration may be availed of by the aggrieved parties against the Joint Committee’s Resolution.
Consequently, publication of the Rules is necessary.

The publication requirement covers not only statutes but administrative regulations and issuances, as clearly
outlined in Tañada v. Tuvera:108 effectivity, which shall begin fifteen days after publication unless a different
effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative
regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication required of the so called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.109

As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, 110 where the
Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal arrangement between the DOJ and the
Office of the Ombudsman outlining the authority and responsibilities among prosecutors of both offices in the
conduct of preliminary investigation, the assailed Joint Committee’s Rules of Procedure regulate not only the
prosecutors of the DOJ and the Comelec but also the conduct and rights of persons, or the public in general. The
publication requirement should, therefore, not be ignored.

Publication is a necessary component of procedural due process to give as wide publicity as possible so that all
persons having an interest in the proceedings may be notified thereof. 111 The requirement of publication is intended
to satisfy the basic requirements of due process. It is imperative for it will be the height of injustice to punish or
otherwise burden a citizen for the transgressions of a law or rule of which he had no notice whatsoever. 112

Nevertheless, even if the Joint Committee’s Rules of Procedure is ineffective for lack of publication, the
proceedings undertaken by the Joint Committee are not rendered null and void for that reason, because the
preliminary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112
of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure.

Validity of the Conduct of

Preliminary Investigation

In her Supplemental Petition,113 GMA outlines the incidents that took place after the filing of the instant petition,
specifically the issuance by the Joint Committee of the Joint Resolution, the approval with modification of such
resolution by the Comelec and the filing of information and the issuance of a warrant of arrest by the RTC. With
these supervening events, GMA further assails the validity of the proceedings that took place based on the
following additional grounds: (1) the undue and unbelievable haste attending the Joint Committee’s conduct of the
preliminary investigation, its resolution of the case, and its referral to and approval by the Comelec, taken in
conjunction with the statements from the Office of the President, demonstrate a deliberate and reprehensible
pattern of abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of the
Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of railroading the
proceedings in the prosecution of the petitioner and in flagrant violation of her right to due process and equal
protection of the laws; (3) the proceedings of the Joint Committee cannot be considered impartial and fair,
considering that respondents have acted as law enforcers, who conducted the criminal investigation, gathered
evidence and thereafter ordered the filing of complaints, and at the same time authorized preliminary investigation
based on the complaints they caused to be filed; (4) the Comelec became an instrument of oppression when it
hastily approved the resolution of the Joint Committee even if two of its members were in no position to cast their
votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant and repeated
violations of her right to due process at every stage of the proceedings demonstrate a deliberate attempt to single
out petitioner through the creation of the Joint Committee. 114

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In their Supplement to the Consolidated Comment,115 respondents accuse petitioners of violating the rule against
forum shopping. They contend that in filing the Supplemental Petition before the Court, the Urgent Omnibus Motion
Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the Comelec, GMA raises the common
issue of whether or not the proceedings before the Joint Committee and the Comelec are null and void for violating
the Constitution. Respondents likewise claim that the issues raised in the supplemental petition are factual which is
beyond the power of this Court to decide.

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

Forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of
seeking another and possibly favorable opinion in another forum other than by appeal or the special civil action of
certiorari.116There can also be forum shopping when a party institutes two or more suits in different courts, either
simultaneously or successively, in order to ask the courts to rule on the same and related causes and/or to grant
the same or substantially the same reliefs on the supposition that one or the other court would make a favorable
disposition or increase a party’s chances of obtaining a favorable decision or action. 117

Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion Ad Cautelam
before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec, emphasizing the unbelievable haste
committed by the Joint Committee and the Comelec in disposing of the cases before them. However, a plain
reading of the allegations in GMA’s motion before the RTC would show that GMA raised the issue of undue haste in
issuing the Joint Resolution only in support of her prayer for the trial court to hold in abeyance the issuance of the
warrant of arrest, considering that her motion for reconsideration of the denial of her motion to be furnished copies
of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue of violation of due
process was raised, it was merely incidental. More importantly, GMA raised in her motion with the RTC the finding
of probable cause as she sought the judicial determination of probable cause which is not an issue in the petitions
before us. GMA’s ultimate prayer is actually for the court to defer the issuance of the warrant of arrest. Clearly, the
reliefs sought in the RTC are different from the reliefs sought in this case. Thus, there is no forum shopping.

With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised therein are
substantially similar to the issues in the supplemental petition which, therefore, strictly speaking, warrants outright
dismissal on the ground of forum shopping, we cannot do so in this case in light of the due process issues raised by
GMA.118 It is worthy to note that the main issues in the present petitions are the constitutionality of the creation of
the Joint Panel and the validity of the proceedings undertaken pursuant thereto for alleged violation of the
constitutional right to due process. In questioning the propriety of the conduct of the preliminary investigation in her
Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the Joint
Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the validity of the conduct
of preliminary investigation.

In Uy v. Office of the Ombudsman,119 the Court explained the nature of preliminary investigation, to wit:

A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty,
malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as
from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to
conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due
process in administering criminal justice. The right to have a preliminary investigation conducted before being
bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical
right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full
measure of his right to due process.120

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the
difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind
and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not a mere
formal or technical right but a substantive one, forming part of due process in criminal justice. 121

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In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights such as the
right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit
counter-affidavits, and other supporting documents in her defense. 122 Admittedly, GMA received the notice requiring
her to submit her counter-affidavit. Yet, she did not comply, allegedly because she could not prepare her counter-
affidavit. She claimed that she was not furnished by Senator Pimentel pertinent documents that she needed to
adequately prepare her counter-affidavit.

In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to furnish her with documents referred to in his
complaint-affidavit and for production of election documents as basis for the charge of electoral sabotage, GMA
prayed that the Joint Committee issue an Order directing the Fact-Finding Team and Senator Pimentel to furnish
her with copies of the following documents:

a. Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed before the
Commission on Elections against Attys. Lilia Suan-Radam and Yogie Martirizar, as well as the Informations
filed in the Regional Trial Court of Pasay City, Branch 114 in Criminal Case Nos. R-PSU-11-03190-CR to
R-PSU-11-03200-CR.

b. Records in the petitions filed by complainant Pimentel before the National Board of Canvassers,
specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07-163.

c. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Maguindanao."

d. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Lanao del Norte."

e. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Shariff Kabunsuan."

f. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Lanao del Sur."

g. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Sulu."

h. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Basilan."

i. Documents which served as basis in the allegations of "Significant findings specific to the protested
municipalities in the Province of Sultan Kudarat." 124

GMA likewise requested the production of election documents used in the Provinces of South and North Cotabato
and Maguindanao.125

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

We do not agree.

GMA’s insistence of her right to be furnished the above-enumerated documents is based on Section 3 (b), Rule 112
of the Rules on Criminal Procedure, which reads:

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

Objects as evidence need not be furnished a party but shall be made available for examination, copying or
photographing at the expense of the requesting party. 126

Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of examination, to
wit:

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

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

While it is true that Senator Pimentel referred to certain election documents which served as bases in the
allegations of significant findings specific to the protested municipalities involved, there were no annexes or
attachments to the complaint filed.128 As stated in the Joint Committee’s Order dated November 15, 2011 denying
GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting
evidence129 However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-
Finding Team’s Initial Report.130Therefore, when GMA was furnished with the documents attached to the Initial
Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the
Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentel’s complaint but were not submitted to the Joint
Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of
other evidence that may later be presented during the trial)131 as the evidence submitted before it were considered
adequate to find probable cause against her.132 Anyway, the failure of the complainant to submit documents
supporting his allegations in the complaint may only weaken his claims and eventually works for the benefit of the
respondent as these merely are allegations unsupported by independent evidence.

We must, however, emphasize at this point that during the preliminary investigation, the complainants are not
obliged to prove their cause beyond reasonable doubt. It would be unfair to expect them to present the entire
evidence needed to secure the conviction of the accused prior to the filing of information. 133 A preliminary
investigation is not the occasion for the full and exhaustive display of the parties’ respective evidence but the
presentation only of such evidence as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof and should be held for trial. 134 Precisely there is a trial to allow the
reception of evidence for the prosecution in support of the charge. 135

With the denial of GMA’s motion to be furnished with and examine the documents referred to in Senator Pimentel’s
complaint, GMA’s motion to extend the filing of her counter-affidavit and countervailing evidence was consequently
denied. Indeed, considering the nature of the crime for which GMA was subjected to preliminary investigation and
the documents attached to the complaint, it is incumbent upon the Joint Committee to afford her ample time to
examine the documents submitted to the Joint Committee in order that she would be able to prepare her counter-
affidavit. She cannot, however, insist to examine documents not in the possession and custody of the Joint
Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary delay in the
disposition of the cases. This undue delay might result in the violation of the right to a speedy disposition of cases
as enshrined in Section 16, Article III of the Constitution which states that "all persons shall have the right to a
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speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." The constitutional right
to speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all
cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial
hearings.136 Any party to a case has the right to demand on all officials tasked with the administration of justice to
expedite its disposition.137 Society has a particular interest in bringing swift prosecutions, and the society’s
representatives are the ones who should protect that interest. 138

Even assuming for the sake of argument that the denial of GMA’s motion to be furnished with and examine the
documents referred to in Senator Pimentel’s complaint carried with it the denial to extend the filing of her counter-
affidavit and other countervailing evidence rendering the preliminary investigation irregular, such irregularity would
not divest the RTC of jurisdiction over the case and would not nullify the warrant of arrest issued in connection
therewith, considering that Informations had already been filed against petitioners, except Mike Arroyo. This would
only compel us to suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA
could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to do so would
hold back the progress of the case which is anathema to the accused’s right to speedy disposition of cases.

It is well settled that the absence or irregularity of preliminary investigation does not affect the court’s jurisdiction
over the case. Nor does it impair the validity of the criminal information or render it defective. Dismissal is not the
remedy.139Neither is it a ground to quash the information or nullify the order of arrest issued against the accused or
justify the release of the accused from detention. 140 The proper course of action that should be taken is to hold in
abeyance the proceedings upon such information and to remand the case for the conduct of preliminary
investigation.141

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

There might have been overzealousness on the part of the Joint Committee in terminating the investigation,
endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in
the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions.145 The orderly administration of justice remains the paramount consideration
with particular regard to the peculiar circumstances of each case. 146 To be sure, petitioners were given the
opportunity to present countervailing evidence. Instead of complying with the Joint Committee’s directive, several
motions were filed but were denied by the Joint Committee. Consequently, petitioners’ right to submit counter-
affidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition
of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of
Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in
turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard.
They even actively participated in the proceedings and in fact filed several motions before the Joint Committee.
Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.

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

It must be stressed, however, that this supervening event does not render the cases before the Court moot and
academic as the main issues raised by petitioners are the constitutionality of the creation of the Joint Committee
and the Fact-Finding Team and the validity of the proceedings undertaken pursuant to their respective mandates.

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

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

Indeed, in Javier v. Comelec,151 the Court set aside the Comelec’s decision against Javier when it was disclosed
that one of the Commissioners who had decided the case was a law partner of Javier’s opponent and who had
refused to excuse himself from hearing the case. Javier, however, is not applicable in this case. First, the cited case
involves the Comelec’s exercise of its adjudicatory function as it was called upon to resolve the propriety of the
proclamation of the winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for
inhibition/disqualification were applicable. Second, the case arose at the time where the purity of suffrage has been
defiled and the popular will scorned through the confabulation of those in authority. 152 In other words, the
controversy arose at the time when the public confidence in the Comelec was practically nil because of its
transparent bias in favor of the administration. 153Lastly, in determining the propriety of the decision rendered by the
Comelec, the Court took into consideration not only the relationship (being former partners in the law firm) between
private respondents therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner
Opinion) but also the general attitude of the Comelec toward the party in power at that time. Moreover, the
questioned Comelec decision was rendered only by a division of the Comelec. The Court thus concluded in Javier
that Commissioner Opinion’s refusal to inhibit himself divested the Comelec’s Second Division of the necessary
vote for the questioned decision and rendered the proceedings null and void. 154

On the contrary, the present case involves only the conduct of preliminary investigation and the questioned
resolution is an act of the Comelec En Banc where all the Commissioners participated and more than a majority
(even if Chairman Brillantes is excluded) voted in favor of the assailed Comelec resolution. Unlike in 1986, public

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confidence in the Comelec remains. The Commissioners have already taken their positions in light of the claim of
"bias and partiality" and the causes of their partial inhibition. Their positions should be respected confident that in
doing so, they had the end in view of ensuring that the credibility of the Commission is not seriously affected.

To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal impediment to the
creation of the Joint DOJ-Comelec Preliminary Investigation Committee and Fact-Finding Team.

First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents
therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal protection clause of the
Constitution.

Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the case as petitioners
failed to prove that the Joint Panel itself showed such bias and partiality against them. Neither was it shown that the
Justice Secretary herself actually intervened in the conduct of the preliminary investigation. More importantly,
considering that the Comelec is a collegial body, the perceived prejudgment of Chairman Brillantes as head of the
Comelec cannot be considered an act of the body itself.

Third, the assailed Joint Order did not create new offices because the Joint Committee and Fact-Finding Team
perform functions that they already perform by virtue of the Constitution, the statutes, and the Rules of
Court.1âwphi1

Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its independence in
favor of the executive branch of government. Resolution No. 9266 was validly issued by the Comelec as a means
to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its
mandate of ensuring a free, orderly, honest, peaceful, and credible elections. The role of the DOJ in the conduct of
preliminary investigation of election offenses has long been recognized by the Comelec because of its lack of funds
and legal officers to conduct investigations and to prosecute such cases on its own. This is especially true after
R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct preliminary investigation of
all election offenses. While we uphold the validity of Comelec Resolution No. 9266 and Joint Order No. 001-2011,
we declare the Joint Committee’s Rules of Procedure infirm for failure to comply with the publication requirement.
Consequently, Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure govern.

Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the complaint, the affidavits,
and other supporting documents submitted to the Joint Committee and they were required to submit their counter-
affidavit and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the pendency of the cases before
the Court does not automatically suspend the proceedings before the Joint Committee nor excuse them from their
failure to file the required counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the
proceedings undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against
petitioners.

WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec
Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact-Finding
Team’s Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the
Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is
declared INEFFECTIVE for lack of publication.

In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with
Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the
preliminary investigation is hereby declared VALID.

Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral
sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.

SO ORDERED.

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22. People of the Philippines v. Judge Yadao, November 13, 2012

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 162144-54               November 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner, 

vs.
HON. MA. THERESA L. DELA TORRE- YADAO, in her capacity as Presiding Judge, Branch 81, Regional
Trial Court of Quezon City, HON. MA. NATIVIDAD M. DIZON, in her capacity as Executive Judge of the
Regional Trial Court of Quezon City, PANFILO M. LACSON, JEWEL F. CANSON, ROMEO M. ACOP,
FRANCISCO G. ZUBIA, JR., MICHAEL RAY B. AQUINO, CEZAR O. MANCAO II, ZOROBABEL S. LAURELES,
GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T. VILLACORTE, GIL C. MENESES, ROLANDO
ANDUYAN, JOSELITO T. ESQUIVEL, RICARDO G. DANDAN, CEASAR TANNAGAN, VICENTE P. ARNADO,
ROBERTO T. LANGCAUON, ANGELITO N. CAISIP, ANTONIO FRIAS, CICERO S. BACOLOD, WILLY NUAS,
JUANITO B. MANAOIS, VIRGILIO V. PARAGAS, ROLANDO R. JIMENEZ, CECILIO T. MORITO, REYNALDO C.
LAS PINAS, WILFREDO G CUARTERO, ROBERTO O. AGBALOG, OSMUNDO B. CARINO, NORBERTO
LASAGA, LEONARDO GLORIA, ALEJANDRO G LIWANAG, ELMER FERRER and ROMY CRUZ, Respondents.

DECISION

ABAD, J.:

This case, which involves the alleged summary execution of suspected members of the Kuratong Bale/eng Gang, is
once again before this Court this time questioning, among other things, the trial qmrt's determination of the absence
of probable cause and its dismissal of the criminal actions. 1

The Facts and the Case

In the early morning of May 18, 1995, the combined forces of the Philippine National Police's Anti-Bank Robbery
and Intelligence Task Group (PNP ABRITG) composed of Task Force Habagat (then headed by Police Chief
Superintendent Panfilo M. Lacson), Traffic Management Command ([TMC] led by then Police Senior
Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command (led by then Police Chief Superintendent
Romeo M. Acop ), and National Capital Region Command (headed by then Police Chief Superintendent Jewel F.
Canson) killed 11 suspected members of the Kuratong Baleleng Gang 2 along Commonwealth Avenue in Quezon
City.

Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation Command told the press that it was a
summary execution, not a shoot-out between the police and those who were slain. After investigation, the Deputy
Ombudsman for Military Affairs absolved all the police officers involved, including respondents Panfilo M. Lacson,
Jewel F. Canson, Romeo M. Acop, Francisco G. Zubia, Jr., Michael Ray B. Aquino, Cezar O. Mancao II, and 28
others (collectively, the respondents).3 On review, however, the Office of the Ombudsman reversed the finding and
filed charges of murder against the police officers involved before the Sandiganbayan in Criminal Cases 23047 to
57, except that in the cases of respondents Zubia, Acop, and Lacson, their liabilities were downgraded to mere
accessory. On arraignment, Lacson pleaded not guilty.

Upon respondents’ motion, the Sandiganbayan ordered the transfer of their cases to the Regional Trial Court (RTC)
of Quezon City on the ground that none of the principal accused had the rank of Chief Superintendent or higher.
Pending the resolution of the Office of the Special Prosecutor’s motion for reconsideration of the transfer order,
Congress passed Republic Act (R.A.) 8249 that expanded the Sandiganbayan’s jurisdiction by deleting the word
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"principal" from the phrase "principal accused" to apply to all pending cases where trial had not begun. As a result
of this new law, the Sandiganbayan opted to retain and try the Kuratong Baleleng murder cases.

Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R. 128096 4 but this Court upheld its validity.
Nonetheless, the Court ordered the transfer of the trial of the cases to the RTC of Quezon City since the amended
informations contained no allegations that respondents committed the offenses charged in relation to, or in the
discharge of, their official functions as required by R.A. 8249.

Before the RTC of Quezon City, Branch 81, then presided over by Judge Wenceslao Agnir, Jr., could arraign
respondents in the re-docketed Criminal Cases Q-99-81679 to 89, however, SPO2 Delos Reyes and the other
prosecution witnesses recanted their affidavits. Some of the victims’ heirs also executed affidavits of desistance.
These prompted the respondents to file separate motions for the determination of probable cause before the
issuance of warrants of arrests.

On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of the cases for lack of probable
cause to hold the accused for trial following the recantation of the principal prosecution witnesses and the
desistance of the private complainants.

Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought to revive the cases against
respondents by requesting the Department of Justice (DOJ) to conduct another preliminary investigation in their
cases on the strength of the affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos. In response, then
DOJ Secretary Hernando B. Perez constituted a panel of prosecutors to conduct the requested investigation.

Invoking their constitutional right against double jeopardy, Lacson and his co-accused filed a petition for prohibition
with application for temporary restraining order and writ of preliminary injunction before the RTC of Manila in Civil
Case 01-100933. In an Order dated June 5, 2001, that court denied the plea for temporary restraining order. Thus,
on June 6, 2001 the panel of prosecutors found probable cause to hold Lacson and his co-accused liable as
principals for 11 counts of murder, resulting in the filing of separate informations against them in Criminal Cases 01-
101102 to 12 before the RTC of Quezon City, Branch 81, now presided over by respondent Judge Ma. Theresa L.
Yadao.

On the same day, respondent Lacson filed a petition for certiorari before the Court of Appeals (CA), assailing the
RTC of Manila’s order which allowed the renewed preliminary investigation of the murder charges against him and
his co-accused. Lacson also filed with the RTC of Quezon City a motion for judicial determination of probable
cause. But on June 13, 2001 he sought the suspension of the proceedings in that court.

In the meantime, the CA issued a temporary restraining order enjoining the RTC of Quezon City from issuing
warrants of arrest or conducting any proceeding in Criminal Cases 01-101102 to 12 before it. On August 24, 2001
the CA rendered a Decision, granting Lacson’s petition on the ground of double jeopardy since, although the
dismissal of Criminal Cases Q-99-81679 to 89 was provisional, such dismissal became permanent two years after
when they were not revived.

Upon the prosecution’s appeal to this Court in G.R. 149453, 5 the Court ruled that, based on the record, Lacson
failed to prove compliance with the requirements of Section 8, Rule 117 governing provisional dismissals. The
records showed that the prosecution did not file a motion for provisional dismissal and, for his part, respondent
Lacson had merely filed a motion for judicial determination of probable cause. Nowhere did he agree to some
proposal for a provisional dismissal of the cases. Furthermore, the heirs of the victims had no notice of any motion
for such provisional dismissal.

The Court thus set aside the CA Decision of August 24, 2001 and directed the RTC of Quezon City to try the cases
with dispatch. On motion for reconsideration by respondent Lacson, the Court ordered the re-raffle of the criminal
cases to a heinous crimes court. Upon re-raffle, however, the cases still went to Branch 81, which as already stated
was now presided over by Judge Yadao.

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On October 12, 2003 the parents of two of the victims submitted birth certificates showing that they were minors.
Apparently reacting to this, the prosecution amended the informations to show such minority and asked respondent
Executive Judge Ma. Natividad M. Dizon to recall the assignment of the cases to Branch 81 and re-raffle them to a
family court. The request for recall was denied.

On October 20, 2003 the prosecution filed an omnibus motion before Branch 81, praying for the re-raffle of Criminal
Cases 01-101102 to12 to the family courts in view of the changes in the two informations. On October 24, 2003 the
prosecution also filed its consolidated comment ex-abundanti cautela on the motions to determine probable cause.

On November 12, 20036 Judge Yadao issued an order, denying the prosecution’s motion for re-raffle to a family
court on the ground that Section 5 of R.A. 8369 applied only to living minors. She also granted the motions for
determination of probable cause and dismissed the cases against the respondents since the affidavits of the
prosecution witnesses were inconsistent with those they submitted in the preliminary investigations before the
Ombudsman for the crime of robbery.

On November 25, 2003 the prosecution filed a verified motion to recuse or disqualify Judge Yadao and for
reconsideration of her order. It also filed an administrative complaint against her for dishonesty, conduct prejudicial
to the best interests of the service, manifest partiality, and knowingly rendering an unjust judgment. 7 On January 14,
2004, the prosecution filed an urgent supplemental motion for compulsory disqualification with motion for
cancellation of the hearing on motion for reconsideration.

On January 21, 2004 Judge Yadao issued an order, denying the motion to recuse her, prompting the prosecution to
appeal from that order. Further, on January 22, 2004 Judge Yadao issued another order, denying the prosecution’s
motion for reconsideration of the Order dated November 12, 2003 that dismissed the action against the
respondents. In response, the prosecution filed a notice of appeal from the same. Finally, on January 26, 2004
Judge Yadao issued an order, denying the prosecution’s motion for reconsideration of its January 16, 2004 Order
not only for lack of merit but also for having become moot and academic.

On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices of appeal that it filed in the cases.
Subsequently, on March 3, 2004 it filed the present special civil action of certiorari.

The Issues Presented

The prosecution presents the following issues:

1. Whether or not Executive Judge Dizon gravely abused her discretion in allowing Criminal Cases 01-
101102 to 12 to be re-raffled to other than among the RTC of Quezon City’s family courts.

2. Whether or not Judge Yadao gravely abused her discretion when she took cognizance of Criminal Cases
01-101102 to 12 contrary to the prosecution’s view that such cases fell under the jurisdiction of family
courts.

3. Whether or not Judge Yadao gravely abused her discretion when she did not inhibit and disqualify
herself from taking cognizance of the cases.

4. Whether or not Judge Yadao gravely abused her discretion when she dismissed the criminal actions on
the ground of lack of probable cause and barred the presentation of additional evidence in support of the
prosecution’s motion for reconsideration.

5. Whether or not Judge Yadao gravely abused her discretion when she adopted certain policies
concerning the conduct of hearings in her court.

The Court’s Rulings

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Before addressing the above issues, the Court notes respondents’ contention that the prosecution’s resort to
special civil action of certiorari under Rule 65 is improper. Since the trial court dismissed the criminal actions
against respondents, the prosecution’s remedy was to appeal to the CA from that order of dismissal.

Ordinarily, the proper remedy from an order dismissing an action is an appeal. 8 Here, the prosecution in fact filed a
notice of appeal from such an order issued in the subject cases. But it reconsidered its action and withdrew that
notice, believing that appeal was not an effective, speedy, and adequate remedy. 9 In other words, the prosecution’s
move was not a case of forgotten remedy but a conscious resort to another based on a belief that respondent
Judge Yadao gravely abused her discretion in issuing her various orders and that certiorari under Rule 65 was the
proper and all-encompassing remedy for the prosecution. The Court is not prepared to say that the remedy is
altogether implausible as to throw out the petition outright.

Still, the Court notes that the prosecution skipped the CA and filed its action directly with this Court, ignoring the
principle of judicial hierarchy of courts. Although the Supreme Court, the CA, and the RTCs have concurrent
jurisdiction to issue a writ of certiorari, such concurrence does not give the People the unrestricted freedom of
choice of forum.10 In any case, the immense public interest in these cases, the considerable length of time that has
passed since the crime took place, and the numerous times these cases have come before this Court probably
warrant a waiver of such procedural lapse.

1. Raffle of the Cases

The prosecution points out that the RTC of Quezon City Executive Judge gravely abused her discretion when she
placed Criminal Cases 01-101102 to 12 under a separate category which did not restrict their raffle to the city’s
special criminal and family courts in accordance with SC Administrative Order 36-96. Further, the prosecution
points out that she violated Administrative Order 19-98 when Branches 219 and 102 were left out of the raffle. The
presiding judges of these two branches, both heinous crimes courts eligible to receive cases by raffle, had just
been appointed to the CA.

The records of the cases show nothing irregular in the conduct of the raffle of the subject cases. The raffle
maintained a separate list for criminal and civil cases. Criminal cases cognizable by special criminal courts were
separately listed. Criminal Cases 01-101102 to 12 were given a separate heading, "Re-Raffle," but there was
nothing irregular in this since it merely indicated that the cases were not being raffled for the first time.

The Executive Judge did not err in leaving out Branches 219 and 102 from raffle since these branches remained
without regularly appointed judges. Although the pairing judges of these branches had authority to act on incidental,
interlocutory, and urgent matters, this did not mean that such branches should already be included in the raffle of
cases.

Parenthetically, the prosecution was represented during the raffle yet it did not then object to the manner by which it
was conducted. The prosecution raised the question only when it filed this petition, a clear afterthought.

2. Jurisdiction of Family Courts

The prosecution points out that, although this Court’s October 7, 2003 Resolution directed a re-raffle of the cases to
a heinous crimes court, the prosecution in the meantime amended the informations to reflect the fact that two of the
murder victims were minors. For this reason, the Executive Judge should have raffled the cases to a family court
pursuant to Section 5 of R.A. 8369.

The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests in family courts jurisdiction over
violations of R.A. 7610, which in turn covers murder cases where the victim is a minor. Thus:

Sec. 5. Jurisdiction of Family Courts. – The Family Courts shall have exclusive original jurisdiction to hear and
decide the following cases:

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 Page 216 of 245

a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9)
years of age, or where one or more of the victims is a minor at the time of the commission of the offense: Provided,
That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the
respondent may have incurred. (Emphasis supplied)

Undoubtedly, in vesting in family courts exclusive original jurisdiction over criminal cases involving minors, the law
but seeks to protect their welfare and best interests. For this reason, when the need for such protection is not
compromised, the Court is able to relax the rule. In several cases, 11 for instance, the Court has held that the CA
enjoys concurrent jurisdiction with the family courts in hearing petitions for habeas corpus involving minors.

Here, the two minor victims, for whose interests the people wanted the murder cases moved to a family court, are
dead. As respondents aptly point out, there is no living minor in the murder cases that require the special attention
and protection of a family court. In fact, no minor would appear as party in those cases during trial since the minor
victims are represented by their parents who had become the real private offended parties.

3. Inhibition of Judge Yadao

The prosecution claims that Judge Yadao committed grave abuse of discretion in failing to inhibit herself from
hearing the cases against the respondents.

The rules governing the disqualification of judges are found, first, in Section 1, Rule 137 of the Rules of Court,
which provides:

Sec. 1. Disqualification of judges. – No judge or judicial officer shall sit in any case in which he, or his wife or child,
is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of
the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid
reasons other than those mentioned above.

and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which states:

Rule 3.12. – A judge should take no part in a proceeding where the judge’s impartiality might reasonably be
questioned. These cases include among others, proceedings where:

(a) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;

xxxx

(e) the judge knows the judge’s spouse or child has a financial interest, as heir, legatee, creditor, fiduciary,
or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that
could be substantially affected by the outcome of the proceeding. In every instance, the judge shall indicate
the legal reason for inhibition.

The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for the compulsory disqualification of a
judge while the second paragraph of Section 1, Rule 137 provides for his voluntary inhibition.

The matter of voluntary inhibition is primarily a matter of conscience and sound discretion on the part of the judge
since he is in a better position to determine whether a given situation would unfairly affect his attitude towards the
parties or their cases. The mere imputation of bias, partiality, and prejudgment is not enough ground, absent clear
and convincing evidence that can overcome the presumption that the judge will perform his duties according to law

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 Page 217 of 245

without fear or favor. The Court will not disqualify a judge based on speculations and surmises or the adverse
nature of the judge’s rulings towards those who seek to inhibit him. 12

Here, the prosecution contends that Judge Yadao should have inhibited herself for improperly submitting to a public
interview on the day following her dismissal of the criminal cases against the respondents. But the Court finds
nothing basically reprehensible in such interview. Judge Yadao’s dismissal of the multiple murder cases aroused
natural public interest and stirred the media into frenzy for correct information. Judge Yadao simply accommodated,
not sought, the requests for such an interview to clarify the basis of her order. There is no allegation that she gave
out false information. To be sure, the prosecution never once accused her of making public disclosures regarding
the merits of those cases prior to her order dismissing such cases.

The prosecution also assails as constituting bias Judge Yadao’s statement that a very close relative stood to be
promoted if she was to issue a warrant of arrest against the respondents. But this statement merely shows that she
cannot be dissuaded by some relative who is close to her. How can this constitute bias? Besides, there is no
evidence that the close relative she referred to was her spouse or child which would be a mandatory ground for
disqualification.

Further, the prosecution claims that Judge Yadao prejudged its motion for reconsideration when she said in her
comment to the administrative complaint against her that such motion was merely the prosecution’s stubborn
insistence on the existence of probable cause against the respondents. The comment could of course not be
regarded as a prejudgment of the issue since she had precisely already issued an order holding that the
complainant’s evidence failed to establish probable cause against the respondents. And there is nothing wrong
about characterizing a motion for reconsideration as a "stubborn" position taken by the party who filed it. Judge
Yadao did not characterize the motion as wholly unjustified at the time she filed her comment.

4. Dismissal of the Criminal Cases

The prosecution claims that Judge Yadao gravely abused her discretion when she set the motions for
determination of probable cause for hearing, deferred the issuance of warrants of arrest, and allowed the defense
to mark its evidence and argue its case. The prosecution stresses that under Section 6, Rule 112 of the Rules of
Court Judge Yadao’s duty was to determine probable cause for the purpose of issuing the arrest warrants solely on
the basis of the investigating prosecutor’s resolution as well as the informations and their supporting documents.
And, if she had some doubts as to the existence of probable cause, the rules required her to order the investigating
prosecutor to present additional evidence to support the finding of probable cause within five days from notice.

Rather than take limited action, said the prosecution, Judge Yadao dug up and adopted the Ombudsman’s findings
when the latter conducted its preliminary investigation of the crime of robbery in 1996. Judge Yadao gave weight to
the affidavits submitted in that earlier preliminary investigation when such documents are proper for presentation
during the trial of the cases. The prosecution added that the affidavits of P/S Insp. Abelardo Ramos and SPO1
Wilmor B. Medes reasonably explained the prior inconsistent affidavits they submitted before the Ombudsman.

The general rule of course is that the judge is not required, when determining probable cause for the issuance of
warrants of arrests, to conduct a de novo hearing. The judge only needs to personally review the initial
determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. 13

But here, the prosecution conceded that their own witnesses tried to explain in their new affidavits the inconsistent
statements that they earlier submitted to the Office of the Ombudsman. Consequently, it was not unreasonable for
Judge Yadao, for the purpose of determining probable cause based on those affidavits, to hold a hearing and
examine the inconsistent statements and related documents that the witnesses themselves brought up and were
part of the records. Besides, she received no new evidence from the respondents. 14

The public prosecutor submitted the following affidavits and documents along with the criminal informations to
enable Judge Yadao to determine the presence of probable cause against the respondents:

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1. P/Insp. Ysmael S. Yu’s affidavit of March 24, 2001 15 in which he said that on May 17, 1995 respondent
Canson, NCR Command Head, ordered him to form two teams that would go after suspected Kuratong
Baleleng Gang members who were seen at the Superville Subdivision in Parañaque City. Yu headed the
assault team while Marlon Sapla headed the perimeter defense. After the police team apprehended eight
men inside the safe house, it turned them over to their investigating unit. The following day, Yu just learned
that the men and three others were killed in a shoot-out with the police in Commonwealth Avenue in
Quezon City.

2. P/S Insp. Abelardo Ramos’ affidavit of March 24, 2001 16 in which he said that he was part of the
perimeter defense during the Superville operation. After the assault team apprehended eight male
suspects, it brought them to Camp Crame in two vans. Ramos then went to the office of respondent Zubia,
TMC Head, where he saw respondents Lacson, Acop, Laureles, Villacorte and other police officers.

According to Ramos, Zubia said that the eight suspects were to be brought to Commonwealth Avenue and
killed in a supposed shoot-out and that this action had been cleared with higher authorities, to which remark
Lacson nodded as a sign of approval. Before Ramos left the meeting, Lacson supposedly told him, "baka
may mabuhay pa diyan." Ramos then boarded an L-300 van with his men and four male suspects. In the
early morning of May 18, 1995, they executed the plan and gunned down the suspects. A few minutes
later, P/S Insp. Glenn G. Dumlao and his men arrived and claimed responsibility for the incident.

3. SPO1 Wilmor B. Medes’ affidavit of April 24, 2001 17 in which he corroborated Ramos’ statements. Medes
said that he belonged to the same team that arrested the eight male suspects. He drove the L-300 van in
going to Commonwealth Avenue where the suspects were killed.

4. Mario C. Enad’s affidavit of August 8, 199518 in which he claimed having served as TMC civilian agent. At
around noon of May 17, 1995, he went to Superville Subdivision together with respondents Dumlao,
Tannagan, and Nuas. Dumlao told Enad to stay in the car and observe what went on in the house under
surveillance. Later that night, other police officers arrived and apprehended the men in the house. Enad
went in and saw six men lying on the floor while the others were handcuffed. Enad and his companions left
Sucat in the early morning of May 18, 1995. He fell asleep along the way but was awaken by gunshots. He
saw Dumlao and other police officers fire their guns at the L-300 van containing the apprehended suspects.

5. SPO2 Noel P. Seno’s affidavit of May 31, 2001 19 in which he corroborated what Ramos said. Seno
claimed that he was part of the advance party in Superville Subdivision and was also in Commonwealth
Avenue when the suspected members of the Kuratong Baleleng Gang were killed.

6. The PNP ABRITG After Operations Report of May 31, 1995 20 which narrated the events that took place
on May 17 and 18, 1995. This report was submitted by Lacson, Zubia, Acop and Canson.

7. The PNP Medico-Legal Reports21 which stated that the suspected members of the Kuratong Baleleng
Gang tested negative for gunpowder nitrates.

The Court agrees with Judge Yadao that the above affidavits and reports, taken together with the other documents
of record, fail to establish probable cause against the respondents.

First. Evidently, the case against respondents rests on the testimony of Ramos, corroborated by those of Medes,
Enad, and Seno, who supposedly heard the commanders of the various units plan the killing of the Kuratong
Baleleng Gang members somewhere in Commonwealth Avenue in Quezon City and actually execute such plan.
Yu’s testimony is limited to the capture of the gang members and goes no further. He did not see them killed.

Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the prosecution’s own evidence—the PNP
ABRITG’s After Operations Report of May 31, 1995—shows that these men took no part in the operations against
the Kuratong Baleleng Gang members. The report included a comprehensive list of police personnel from Task
Force Habagat (Lacson), Traffic Management Command (Zubia), Criminal Investigation Command (Acop), and
National Capital Region Command (Canson) who were involved. The names of Ramos, Medes, Enad, and Seno

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were not on that list. Notably, only Yu’s name, among the new set of witnesses, was on that list. Since an after-
battle report usually serves as basis for commendations and promotions, any omitted name would hardly have
gone unchallenged.

Third. Ramos, whose story appeared to be the most significant evidence against the respondents, submitted in the
course of the preliminary investigation that the Office of the Ombudsman conducted in a related robbery charge
against the police officers involved a counter-affidavit. He claimed in that counter-affidavit that he was neither in
Superville Subdivision nor Commonwealth Avenue during the Kuratong Baleleng operations since he was in
Bulacan on May 17, 1995 and at his home on May 18. 22 Notably, Medes claimed in a joint counter-affidavit that he
was on duty at the TMC headquarters at Camp Crame on May 17 and 18. 23

Fourth. The Office of the Ombudsman, looking at the whole picture and giving credence to Ramos and Medes’
statements, dismissed the robbery case. More, it excluded Ramos from the group of officers that it charged with the
murder of the suspected members of the Kuratong Baleleng Gang. Under the circumstances, the Court cannot be
less skeptical than Judge Yadao was in doubting the sudden reversal after six years of testimony of these
witnesses.

Of course, Yu may have taken part in the subject operation but, as he narrated, his role was limited to cornering
and arresting the suspected Kuratong Baleleng Gang members at their safe house in Superville Subdivision. After
his team turned the suspects over to an investigating unit, he no longer knew what happened to them.

Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng Gang members tested negative for
gunpowder nitrates. But this finding cannot have any legal significance for the purpose of the preliminary
investigation of the murder cases against the respondents absent sufficient proof that they probably took part in
gunning those gang members down.

The prosecution points out that, rather than dismiss the criminal action outright, Judge Yadao should have ordered
the panel of prosecutors to present additional evidence pursuant to Section 6, Rule 112 of the Rules of Court which
provides:

Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of
the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already
been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal
information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a
warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional evidence within five
days from notice in case of doubt as to the existence of probable cause. 24

But the option to order the prosecutor to present additional evidence is not mandatory. The court’s first option under
the above is for it to "immediately dismiss the case if the evidence on record clearly fails to establish probable
cause." That is the situation here: the evidence on record clearly fails to establish probable cause against the
respondents.

It is only "in case of doubt on the existence of probable cause" that the judge may order the prosecutor to present
additional evidence within five days from notice. But that is not the case here. Discounting the affidavits of Ramos,
Medes, Enad, and Seno, nothing is left in the record that presents some doubtful probability that respondents
committed the crime charged. PNP Director Leandro Mendoza sought the revival of the cases in 2001, six years
after it happened. It would have been ridiculous to entertain the belief that the police could produce new witnesses
in the five days required of the prosecution by the rules.

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In the absence of probable cause to indict respondents for the crime of multiple murder, they should be insulated
from the tribulations, expenses and anxiety of a public trial. 25

5. Policies Adopted for Conduct of Court Hearing

The prosecution claims that Judge Yadao arbitrarily recognized only one public prosecutor and one private
prosecutor for all the offended parties but allowed each of the counsels representing the individual respondents to
be heard during the proceedings before it. She also unjustifiably prohibited the prosecution’s use of tape recorders.

But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent and administrative powers to
effectively control the conduct of its proceedings. Thus:

Sec. 5. Inherent powers of court. — Every court shall have power:

xxxx

(b) To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial
investigation under its authority;

xxxx

(d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner
connected with a case before it, in every manner appertaining thereto;

xxxx

(g) To amend and control its process and orders so as to make them conformable to law and justice;

xxxx

There is nothing arbitrary about Judge Yadao’s policy of allowing only one public prosecutor and one private
prosecutor to address the court during the hearing for determination of probable cause but permitting counsels
representing the individual accused to do so. A criminal action is prosecuted under the direction and control of the
public prosecutor.26 The burden of establishing probable cause against all the accused is upon him, not upon the
private prosecutors whose interests lie solely in their clients’ damages claim. Besides, the public and the private
prosecutors take a common position on the issue of probable cause. On the other hand, each of the accused is
entitled to adopt defenses that are personal to him.

As for the prohibition against the prosecution’s private recording of the proceedings, courts usually disallows such
recordings because they create an unnecessary distraction and if allowed, could prompt every lawyer, party,
witness, or reporter having some interest in the proceeding to insist on being given the same privilege. Since the
prosecution makes no claim that the official recording of the proceedings by the court’s stenographer has been
insufficient, the Court finds no grave abuse of discretion in Judge Yadao’s policy against such extraneous
recordings.

WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following assailed Orders of the Regional
Trial Court of Quezon City, Branch 81 in Criminal Cases 01-101102 to 12:

1. the Order dated November 12, 2003 which denied the prayer for re-raffle, granted the motions for
determination of probable cause, and dismissed the criminal cases;

2. the Order dated January 16, 2004 which granted the motion of the respondents for the immediate
resolution of the three pending incidents before the court;

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3. the Order dated January 21, 2004 which denied the motion to recuse and the urgent supplemental
motion for compulsory disqualification;

4. the Order dated January 22, 2004 which denied the motion for reconsideration of the Order dated
November 12, 2003; and

5. the Order dated January 26, 2004 which denied the motion for reconsideration of the January 16, 2004
Order.

SO ORDERED.

23. Sierra v. Lopez, August 29, 2008

THIRD DIVISION
 
AURELIO M. SIERRA, Adm. Case No. 7549
Complainant,  
  Present:
   
- versus - YNARES-SANTIAGO, J.,
  Chairperson,
  AUSTRIA-MARTINEZ,
  CHICO-NAZARIO,
JHOSEP Y. LOPEZ, City Prosecutor of Manila, NACHURA, and
EUFROCINO SULLA, 1stAssistant City Prosecutor REYES, JJ.
(ACP), ACP ALEXANDER T. YAP, ACP MARLO  
CAMPANILLA, and ACP ARMANDO VELASCO, Promulgated:
Respondents.  
  August 29, 2008
 
x------------------------------------------------------------------------------------x
 
 
 
 
 
 
 
 
DECISION
 
NACHURA, J.:
 
 
 
 
The instant controversy arose from a complaint for dereliction of duty and gross ignorance of the law by Aurelio M.
Sierra against City Prosecutor of Manila Jhosep Y. Lopez, 1 stAssistant City Prosecutor (ACP) Eufrocino Sulla,
Assistant City Prosecutors Alexander Yap, Marlo Campanilla and Armando Velasco.

The facts of the case are as follows:

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On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed several cases before the Office of the
City Prosecutor of Manila for Misrepresentation through Deceit and Syndicated Large Scale Fraud in Land Titling
with Conspiracy, Land Grabbing, Falsification of Public Document and Economic Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal respondents therein, namely: Alfredo C.
Ramos, Presentacion Ramos, George S.K. Ty, Atty. Emmanuel Leonardo, and a certain Mr. Cayaban, did not
appear during the scheduled hearing. However, Alfredo and Presentacion Ramos appeared in the morning of that
day ahead of the complainant in which they submitted their respective counter-affidavits, subscribed and sworn to
before ACP Yap. The respondents asked that they be allowed to submit their counter-affidavits ahead of the
scheduled hearing because they had an urgent matter to attend to in the afternoon. In the case of George S.K. Ty
and Mr. Cayaban, their respective counter-affidavits were submitted by their lawyers during the scheduled hearing
in the afternoon, already subscribed and sworn to before a Pasig Prosecutor. Atty. Leonardo did not submit any
counter-affidavit.
 
Because of ACP Yaps failure to require the presence of respondents in said cases simultaneously with the
complainant, Mr. Sierra asked for the prosecutors inhibition. The cases were then re-raffled to the respondent ACP
Marlo Campanilla who likewise did not require the presence of the respondents in the preliminary investigation.
Because of this, he too was asked to inhibit from the cases by complainant.
 
The cases were then re-raffled to ACP Armando Velasco who also handled the cases in the same manner as the
two other prosecutors before him. City Prosecutor Jhosep Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the
correctness of the manner in which their investigating prosecutors handled the cases.
 
On April 26, 2007, Sierra filed a complaint with the Supreme Court for dereliction of duty and gross ignorance of the
law against City Prosecutor Lopez, 1st ACP Sulla, ACP Yap, ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether the parties must appear together
before the investigating prosecutor during preliminary investigation; (2) whether the counter-affidavits of the
respondents should be sworn to only before the investigating prosecutor; and (3) whether the investigating
prosecutor erred in denying the request of the complainant for clarificatory questioning.
 
The Supreme Court Third Division then issued a Resolution dated July 25, 2008 requiring respondents to comment
on the complaint.
In compliance with the Honorable Courts order, respondents filed their Comment dated March 7, 2008 stating that
they handled the cases properly and in accordance with what was provided by law. They also argued that they had
not committed any dereliction of duty and gross ignorance of the law.
 
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic procedure in preliminary investigation, as
follows:
 
Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner:
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(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there are respondents, plus two (2)
copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or unavailability, before a
notary public, each of whom must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
 
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
 
The respondent shall have the right to examine the evidence submitted by the complainant which
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at his
expense.
 
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
 
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits
and documents, the respondent shall submit his counter-affidavit and that of his witnesses and
other supporting documents relied upon for his defense. The counter-affidavits, shall be subscribed
and sworn to and certified as provided in paragraph (a) of this section, with copies thereof
furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss
in lieu of a counter-affidavit.
 
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
 
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.
 
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five
(5) days.
 
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or
not there is sufficient ground to hold the respondent for trial.
 
 
This provision of the Rules does not require a confrontation between the parties.  Preliminary investigation is
ordinarily conducted through submission of affidavits and supporting documents, through the exchange of
pleadings.
 
In Rodis, Sr. v. Sandiganbayan[1] we ruled that -
 
(the New Rules on Criminal Procedure) do not require as a condition sine qua non to the validity of
the proceedings ( in the preliminary investigation) the presence of the accused for as long as
efforts to reach him were made, and an opportunity to controvert evidence of the complainant is

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accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to
thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics.
 
 
Since confrontation between the parties is not imperative, it follows that it is not necessary that the counter-
affidavit of respondent be sworn to before the investigating prosecutor himself. It can be sworn to before another
prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the counter-affidavit
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section x x x; and paragraph (a),
provides:
 
the affidavits shall be subscribed and sworn to before any prosecutor or government official or in
their absence or unavailability, before a notary public x x x.
 
 
Lastly, we hold that the investigating prosecutors did not abuse their discretion when they denied the request of the
complainant for the conduct of clarificatory questioning.Under paragraph (e) of Section 3 above, the conduct of
clarificatory questioning is discretionary upon the prosecutor. Indeed, we already held in Webb v. De Leon[2] that the
decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator, and the
investigator alone.
 
WHEREFORE, premises considered, the complaint is DENIED for lack of merit.
 
SO ORDERED.

24. Baviera v. Paglinawan, February 8, 2007

FIRST DIVISION
 
 
 

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MANUEL V. BAVIERA, G.R. No. 168380

Petitioner,  
   
-         versus -  
   
   
ESPERANZA PAGLINAWAN, in her capacity as  
Department of Justice State Prosecutor; LEAH C.  
TANODRA-ARMAMENTO, In her capacity as  
Assistant Chief State Prosecutor and  
Chairwoman of Task Force on Business Scam;  
JOVENCITO R. ZUNO, in his capacity as  
Department of Justice Chief State Prosecutor;  
STANDARD CHARTERED BANK, PAUL SIMON  
MORRIS, AJAY KANWAL, SRIDHAR  
RAMAN, MARIVEL GONZALES, CHONA REYES,  
MARIA ELLEN VICTOR, and ZENAIDA  
IGLESIAS, Respondents.  
x-----------------------------x  
 
 
 
 
 
MANUEL V. BAVIERA, Petitioner, G.R. No. 170602
   
-         versus -  
  Present:
STANDARD CHARTERED BANK, BRYAN K.  
SANDERSON, THE RIGHT HONORABLE LORD PUNO, C.J.,Chairperson,
STEWARTBY, EVAN MERVYN DAVIES, SANDOVAL-GUTIERREZ,
*
MICHAEL BERNARD DENOMA, CHRISTOPHER CORONA,
AVEDIS KELJIK, RICHARD HENRY MEDDINGS, AZCUNA, and
KAI NARGOLWALA, PETER ALEXANDER GARCIA, JJ.
SANDS, RONNIE CHI CHUNG CHAN, SIR CK  
CHOW, BARRY CLARE, HO KWON PING, Promulgated:
RUDOLPH HAROLD PETER ARKHAM, DAVID  
GEORGE MOIR, HIGH EDWARD NORTON, SIR February 8, 2007
RALPH HARRY ROBINS, ANTHONY WILLIAM  
PAUL STENHAM (Standard Chartered Bank
Chairman, Deputy Chairman, and Members of
the Board), SHERAZAM MAZARI (Group
Regional Head for Consumer Banking),
PAUL SIMON MORRIS, AJAY KANWAL,
SRIDHAR RAMAN, MARIVEL GONZALES,
CHONA REYES, ELLEN VICTOR, RAMONA H.
BERNAD, DOMINGO CARBONELL, JR., and
ZENAIDA IGLESIAS (Standard Chartered Bank-
Philippines Branch Heads/Officers),
Respondents.

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x -------------------------------------------------------------------------------------------x
 
DECISION
 
SANDOVAL-GUTIERREZ, J.:
 
Before us are two consolidated Petitions for Review on Certiorari assailing the Decisions of the Court of Appeals in
CA-G.R. SP No. 87328[1] and in CA-G.R. SP No. 85078.[2]
 
The common factual antecedents of these cases as shown by the records are:
 
Manuel Baviera, petitioner in these cases, was the former head of the HR Service Delivery and Industrial Relations
of Standard Chartered Bank-Philippines (SCB), one of herein respondents. SCB is a foreign banking corporation
duly licensed to engage in banking, trust, and other fiduciary business in the Philippines. Pursuant to Resolution
No. 1142 dated December 3, 1992 of the Monetary Board of the Bangko Sentral ng Pilipinas (BSP), the conduct of
SCBs business in this jurisdiction is subject to the following conditions:
 
1.      At the end of a one-year period from the date the SCB starts its trust functions, at least
25% of its trust accounts must be for the account of non-residents of the Philippines and
that actual foreign exchange had been remitted into the Philippines to fund such accounts
or that the establishment of such accounts had reduced the indebtedness of residents
(individuals or corporations or government agencies) of the Philippines to non-residents. At
the end of the second year, the above ratio shall be 50%, which ratio must be observed
continuously thereafter;
 
2.      The trust operations of SCB shall be subject to all existing laws, rules and regulations
applicable to trust services, particularly the creation of a Trust Committee; and
 
3.      The bank shall inform the appropriate supervising and examining department of the BSP
at the start of its operations.
 
Apparently, SCB did not comply with the above conditions. Instead, as early as 1996, it acted as a stock broker,
soliciting from local residents foreign securities called GLOBAL THIRD PARTY MUTUAL FUNDS (GTPMF),
denominated in US dollars. These securities were not registered with the Securities and Exchange Commission
(SEC). These were then remitted outwardly to SCB-Hong Kong and SCB-Singapore.
 
 
SCBs counsel, Romulo Mabanta Buenaventura Sayoc and Delos Angeles Law Office, advised the bank to proceed
with the selling of the foreign securities although unregistered with the SEC, under the guise of a custodianship
agreement; and should it be questioned, it shall invoke Section 72 [3] of the General Banking Act (Republic Act
No.337).[4] In sum, SCB was able to sell GTPMF securities worth around P6 billion to some 645 investors.
 

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However, SCBs operations did not remain unchallenged. On July 18, 1997, the Investment Capital Association of
the Philippines (ICAP) filed with the SEC a complaint alleging that SCB violated the Revised Securities Act,
[5]
 particularly the provision prohibiting the selling of securities without prior registration with the SEC; and that its
actions are potentially damaging to the local mutual fund industry.
 
In its answer, SCB denied offering and selling securities, contending that it has been performing a purely
informational function without solicitations for any of its investment outlets abroad; that it has a trust license and the
services it renders under the Custodianship Agreement for offshore investments are authorized by Section 72 [6] of
the General Banking Act; that its clients were the ones who took the initiative to invest in securities; and it has been
acting merely as an agent or passive order taker for them.
 
On September 2, 1997, the SEC issued a Cease and Desist Order against SCB, holding that its services violated
Sections 4(a)[7] and 19[8] of the 
Revised Securities Act.
 
Meantime, the SEC indorsed ICAPs complaint and its supporting documents to the BSP.
 
On October 31, 1997, the SEC informed the Secretary of Finance that it withdrew GTPMF securities from the
market and that it will not sell the same without the necessary clearances from the regulatory authorities.
 
Meanwhile, on August 17, 1998, the BSP directed SCB not to include investments in global mutual funds issued
abroad in its trust investments portfolio without prior registration with the SEC.
 
On August 31, 1998, SCB sent a letter to the BSP confirming that it will withdraw third-party fund products which
could be directly purchased by investors.
However, notwithstanding its commitment and the BSP directive, SCB continued to offer and sell GTPMF securities
in this country. This prompted petitioner to enter into an Investment Trust Agreement with SCB wherein he
purchased US$8,000.00 worth of securities upon the banks promise of 40% return on his investment and a
guarantee that his money is safe. After six (6) months, however, petitioner learned that the value of his investment
went down to US$7,000.00. He tried to withdraw his investment but was persuaded by Antonette de los Reyes of
SCB to hold on to it for another six (6) months in view of the possibility that the market would pick up.
 
Meanwhile, on November 27, 2000, the BSP found that SCB failed to comply with its directive of August 17,
1998. Consequently, it was fined in the amount of P30,000.00.
 
The trend in the securities market, however, was bearish and the worth of petitioners investment went down further
to only US$3,000.00.
 

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On October 26, 2001, petitioner learned from Marivel Gonzales, head of the SCB Legal and Compliance
Department, that the latter had been prohibited by the BSP to sell GPTMF securities. Petitioner then filed with the
BSP a letter-complaint demanding compensation for his lost investment. But SCB denied his demand on the
ground that his investment is regular.
 
On July 15, 2003, petitioner filed with the Department of Justice (DOJ), represented herein by its prosecutors,
public respondents, a complaint charging the above-named officers and members of the SCB Board of Directors
and other SCB officials, private respondents, with syndicated estafa, docketed as I.S. No. 2003-1059.
 
For their part, private respondents filed the following as counter-charges against petitioner: (1) blackmail and
extortion, docketed as I.S. No. 2003-1059-A; and blackmail and perjury, docketed as I.S. No. 2003-1278.
 
On September 29, 2003, petitioner also filed a complaint for perjury against private respondents Paul Simon Morris
and Marivel Gonzales, docketed as I.S. No. 2003-1278-A.
 
On December 4, 2003, the SEC issued a Cease and Desist Order against SCB restraining it from further offering,
soliciting, or otherwise selling its securities to the public until these have been registered with the SEC.
 
Subsequently, the SEC and SCB reached an amicable settlement.
 
On January 20, 2004, the SEC lifted its Cease and Desist Order and approved the P7 million settlement offered by
SCB. Thereupon, SCB made a commitment not to offer or sell securities without prior compliance with the
requirements of the SEC.
On February 7, 2004, petitioner filed with the DOJ a complaint for violation of Section 8.1 [9] of the Securities
Regulation Code against private respondents, docketed as I.S. No. 2004-229.
 
On February 23, 2004, the DOJ rendered its Joint Resolution [10] dismissing petitioners complaint for syndicated
estafa in I.S. No. 2003-1059; private respondents complaint for blackmail and extortion in I.S. No. 2003-1059-A;
private respondents complaint for blackmail and perjury in I.S. No. 2003-1278; and petitioners complaint for perjury
against private respondents Morris and Gonzales in I.S. No. 2003-1278-A.
 
Meanwhile, in a Resolution[11] dated April 4, 2004, the DOJ dismissed petitioners complaint in I.S. No. 2004-229
(violation of Securities Regulation Code), holding that it should have been filed with the SEC.
 
Petitioners motions to dismiss his complaints were denied by the DOJ. Thus, he filed with the Court of Appeals a
petition for certiorari, docketed as CA-G.R. SP No. 85078. He alleged that the DOJ acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in dismissing his complaint for  syndicated estafa.
 

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He also filed with the Court of Appeals a separate petition for certiorari assailing the DOJ Resolution dismissing I.S.
No. 2004-229 for violation of the Securities Regulation Code. This petition was docketed as CA-
G.R. SP No. 87328. Petitioner claimed that the DOJ acted with grave abuse of discretion tantamount to lack or
excess of jurisdiction in holding that the complaint should have been filed with the SEC.
 
On January 7, 2005, the Court of Appeals promulgated its Decision dismissing the petition. It sustained the ruling of
the DOJ that the case should have been filed initially with the SEC.
 
Petitioner filed a motion for reconsideration but it was denied in a Resolution dated May 27, 2005.
 
Meanwhile, on February 21, 2005, the Court of Appeals rendered its Decision in CA-G.R. SP No. 85078 (involving
petitioners charges and respondents counter charges) dismissing the petition on the ground that the purpose of a
petition for certiorari is not to evaluate and weigh the parties evidence but to determine whether the assailed
Resolution of the DOJ was issued with grave abuse of discretion tantamount to lack of jurisdiction. Again, petitioner
moved for a reconsideration but it was denied in a Resolution of November 22, 2005.
 
Hence, the instant petitions for review on certiorari.
 
For our resolution is the fundamental issue of whether the Court of Appeals erred in concluding that the DOJ did not
commit grave abuse of discretion in dismissing petitioners complaint in I.S. 2004-229 for violation of Securities
Regulation Code and his complaint in I.S. No. 2003-1059 for syndicated estafa.
 
G.R. No 168380
Re: I.S. No. 2004-229
For violation of the Securities Regulation Code
 
 
Section 53.1 of the Securities Regulation Code provides:
SEC. 53. Investigations, Injunctions and Prosecution of Offenses.
53. 1. The Commission may, in its discretion, make such investigation as it deems necessary to
determine whether any person has violated or is about to violate any provision of this Code, any
rule, regulation or order thereunder, or any rule of an Exchange, registered securities association,
clearing agency, other self-regulatory organization, and may require or permit any person to file
with it a statement in writing, under oath or otherwise, as the Commission shall determine, as to
all facts and circumstances concerning the matter to be investigated. The Commission may
publish information concerning any such violations and to investigate any fact, condition, practice
or matter which it may deem necessary or proper to aid in the enforcement of the provisions of
this Code, in the prescribing of rules and regulations thereunder, or in securing information to
serve as a basis for recommending further legislation concerning the matters to which this Code
relates: Provided, however, That any person requested or subpoenaed to produce documents or
testify in any investigation shall simultaneously be notified in writing of the purpose of such
investigation: Provided, further, That all criminal complaints for violations of this Code and
the implementing rules and regulations enforced or administered by the Commission shall

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be referred to the Department of Justice for preliminary investigation and prosecution

before the proper court: Provided, furthermore, That in instances where the law allows
independent civil or criminal proceedings of violations arising from the act, the Commission shall
take appropriate action to implement the same: Provided, finally; That the investigation,
prosecution, and trial of such cases shall be given priority.
 
 
The Court of Appeals held that under the above provision, a criminal complaint for violation of any law or rule
administered by the SEC must first be filed with the latter. If the Commission finds that there is probable cause,
then it should refer the case to the DOJ. Since petitioner failed to comply with the foregoing procedural
requirement, the DOJ did not gravely abuse its discretion in dismissing his complaint in I.S. No. 2004-229.
 
A criminal charge for violation of the Securities Regulation Code is a specialized dispute. Hence, it must first be
referred to an administrative agency of special competence, i.e., the SEC. Under the doctrine of primary
jurisdiction, courts will not determine a controversy involving a question within the jurisdiction of the administrative
tribunal, where the question demands the exercise of sound administrative discretion requiring the specialized
knowledge and expertise of said administrative tribunal to determine technical and intricate matters of fact. [12] The
Securities Regulation Code is a special law. Its enforcement is particularly vested in the SEC. Hence, all complaints
for any violation of the Code and its implementing rules and regulations should be filed with the SEC. Where the
complaint is criminal in nature, the SEC shall indorse the complaint to the DOJ for preliminary investigation and
prosecution as provided in Section 53.1 earlier quoted.
 
We thus agree with the Court of Appeals that petitioner committed a fatal procedural lapse when he filed
his criminal complaint directly with the DOJ. Verily, no grave abuse of discretion can be ascribed to the DOJ in
dismissing petitioners complaint.
 
 
G.R. No. 170602
Re: I.S. No. 2003-1059 for
Syndicated Estafa
 
 
Section 5, Rule 110 of the 2000 Rules of Criminal Procedure, as amended, provides that all criminal actions,
commenced by either a complaint or an information, shall be prosecuted under the direction and control of a public
prosecutor. This mandate is founded on the theory that a crime is a breach of the security and peace of the people
at large, an outrage against the very sovereignty of the State. It follows that a representative of the State shall direct
and control the prosecution of the offense. [13] This representative of the State is the public prosecutor, whom this
Court described in the old case of Suarez v. Platon,[14] as:
 
[T]he representative not of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be

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done. As such, he is in a peculiar and very definite sense a servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffers.
 
 
Concomitant with his authority and power to control the prosecution of criminal offenses, the public prosecutor is
vested with the discretionary power to determine whether a prima facie case exists or not.[15] This is done through a
preliminary investigation designed to secure the respondent from hasty, malicious and oppressive prosecution. A
preliminary investigation is essentially an inquiry to determine whether (a) a crime has been committed; and (b)
whether there is probable cause that the accused is guilty thereof. [16] In Pontejos v. Office of the Ombudsman,
[17]
 probable cause is defined as such facts and circumstances that would engender a well-founded belief that a
crime has been committed and that the respondent is probably guilty thereof and should be held for trial. It is the
public prosecutor who determines during the preliminary investigation whether probable cause exists. Thus, the
decision whether or not to dismiss the criminal complaint against the accused depends on the sound discretion of
the prosecutor.
 
Given this latitude and authority granted by law to the investigating prosecutor, the rule in this jurisdiction is that
courts will not interfere with the conduct of preliminary investigations or reinvestigations or in the
determination of what constitutes sufficient probable cause for the filing of the corresponding information
against an offender.[18] Courts are not empowered to substitute their own judgment for that of the executive
branch.[19] Differently stated, as the matter of whether to prosecute or not is purely discretionary on his part, courts
cannot compel a public prosecutor to file the corresponding information, upon a complaint, where he finds the
evidence before him insufficient to warrant the filing of an action in court. In sum, the prosecutors findings on the
existence of probable cause are not subject to review by the courts, unless these are patently shown to
have been made with grave abuse of discretion.[20]
 
Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer
concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be as patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility.[21]
 
In determining whether the DOJ committed grave abuse of discretion, it is expedient to know if the  findings of
fact of herein public prosecutors were reached in an arbitrary or despotic manner.
 
The Court of Appeals held that petitioners evidence is insufficient to establish probable cause for syndicated estafa.
There is no showing from the record that private respondents herein did induce petitioner by false representations
to invest in the GTPMF securities. Nor did they act as a syndicate to misappropriate his money for their own benefit.
Rather, they invested it in accordance with his written instructions. That he lost his investment is not their fault since
it was highly speculative.
 

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Records show that public respondents examined petitioners evidence with care, well aware of their duty to prevent
material damage to his constitutional right to liberty and fair play. In Suarez  previously cited, this Court made it
clear that a public prosecutors duty is two-fold. On one hand, he is bound by his oath of office to prosecute persons
where the complainants evidence is ample and sufficient to show prima facie guilt of a crime. Yet, on the other
hand, he is likewise duty-bound to protect innocent persons from groundless, false, or malicious prosecution. [22]
 
Hence, we hold that the Court of Appeals was correct in dismissing the petition for review against private
respondents and in concluding that the DOJ did not act with grave abuse of discretion tantamount to lack or excess
of jurisdiction.
 
On petitioners complaint for violation of the Securities Regulation Code, suffice it to state that, as aptly
declared by the Court of Appeals, he should have filed it with the SEC, not the DOJ. Again, there is no indication
here that in dismissing petitioners complaint, the DOJ acted capriciously or arbitrarily.
 
WHEREFORE, we DENY the petitions and AFFIRM the assailed Decisions of the Court of Appeals in CA-G.R.
SP No. 87328 and in CA-G.R. SP No. 85078.
 
Costs against petitioner.
 
SO ORDERED.

25. Borlongan v. Pena, May 5, 2010

SECOND DIVISION
 
TEODORO C. BORLONGAN, JR.,CORAZON M.   G.R. No. 143591
BEJASA, ARTURO E.  
MANUEL, JR., ERIC L. LEE, P.  
SIERVO H. DIZON, BENJAMIN DE Present:
LEON, DELFIN C. GONZALES, JR.,  
and BEN YU LIM, JR., Petitioners, BRION, J.,
  Acting Chairperson,
  DEL CASTILLO,
- versus - VILLARAMA, JR.,*
  PEREZ, and
  MENDOZA, JJ.**
MAGDALENO M. PEA and HON.  
MANUEL Q. LIMSIACO, JR., as Judge Designate  
of the Municipal Trial Court in Cities, Bago City,  
Respondents.  
Promulgated:
May 5, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 
DECISION
 
PEREZ, J.:
 
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The pivotal issue in this case is whether or not the Court of Appeals, in its Decision[1] dated 20 June 2000 in
CA-G.R. SP No. 49666, is correct when it dismissed the petition for certiorari filed by petitioners Teodoro C.
Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C.
Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court in Cities (MTCC), Bago City,
did not gravely abuse its discretion in denying the motion for reinvestigation and recall of the warrants of arrest in
Criminal Case Nos. 6683, 6684, 6685, and 6686.
 
The factual antecedents of the case are as follows:
 
Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for recovery of agents compensation and
expenses, damages, and attorneys fees[2] against Urban Bank and herein petitioners, before the Regional Trial
Court (RTC) of Negros Occidental, Bago City. The case was raffled to Branch 62 and was docketed as Civil Case
No. 754. Atty. Pea anchored his claim for compensation on the Contract of Agency [3] allegedly entered into with the
petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and squatter from
unlawfully occupying Urban Banks property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion
to Dismiss[4] arguing that they never appointed the respondent as agent or counsel. Attached to the motion were the
following documents: 1) a Letter[5] dated 19 December 1994 signed by Herman Ponce and Julie Abad on behalf of
Isabela Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter [6] dated 7
December 1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter [7] dated 9 December 1994
addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum [8] dated 20 November
1994 from Enrique Montilla III. Said documents were presented in an attempt to show that the respondent was
appointed as agent by ISCI and not by Urban Bank or by the petitioners.
 
In view of the introduction of the above-mentioned documents, Atty. Pea filed his Complaint-Affidavit [9] with the
Office of the City Prosecutor, Bago City.[10] He claimed that said documents were falsified because the alleged
signatories did not actually affix their signatures, and the signatories were neither stockholders nor officers and
employees of ISCI.[11] Worse, petitioners introduced said documents as evidence before the RTC knowing that they
were falsified.
 
In a Resolution[12] dated 24 September 1998, the City Prosecutor found probable cause for the indictment of
petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second paragraph
of Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were falsified
because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitioners
knew that the documents were falsified considering that the signatories were mere dummies; and that the
documents formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence in
support of their motion to dismiss, and then adopted in their answer and in their Pre-Trial Brief. [13] Subsequently, the
corresponding Informations[14] were filed with the MTCC, Bago City. The cases were docketed as Criminal Case
Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the warrants [15] for the arrest of the
petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
Reinvestigation.[16] Petitioners insisted that they were denied due process because of the non-observance of the
proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-affidavit
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and supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit
and attachments of the respondent in issuing the warrants of arrest, also in contravention with the  Rules of
Court. Petitioners further prayed that the information be quashed for lack of probable cause. Moreover, one of the
accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what complainant stated. Lastly,
petitioners posited that the criminal cases should have been suspended on the ground that the issue being
threshed out in the civil case is a prejudicial question.
In an Order[17] dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground that
preliminary investigation was not available in the instant case which fell within the jurisdiction of the first-level
court. The court, likewise, upheld the validity of the warrant of arrest, saying that it was issued in accordance with
the Rules of Court. Besides, the court added, petitioners could no longer question the validity of the warrant since
they already posted bail. The court also believed that the issue involved in the civil case was not a prejudicial
question, and, thus, denied the prayer for suspension of the criminal proceedings.  Lastly, the court was convinced
that the Informations contained all the facts necessary to constitute an offense.
 
Petitioners immediately instituted a special civil action for Certiorari and Prohibition with Prayer for Writ of
Preliminary Injunction and Temporary Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of the MTCC in issuing and not recalling the
warrants of arrest, reiterating the arguments in their omnibus motion. [18] They, likewise, questioned the courts
conclusion that by posting bail, petitioners already waived their right to assail the validity of the warrants of arrest.
 
On 20 June 2000, the Court of Appeals dismissed the petition. [19] Thus, petitioners filed the instant petition for
review on certiorari under Rule 45 of the Rules of Court, raising the following issues:
 
A.
Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court
and not covered by the Rule on Summary Procedure, is the finding of probable cause required for
the filing of an Information in court?
 
If the allegations in the complaint-affidavit do not establish probable cause, should not the
investigating prosecutor dismiss the complaint, or at the very least, require the respondent to
submit his counter-affidavit?
 
B.
Can a complaint-affidavit containing matters which are not within the personal knowledge
of the complainant be sufficient basis for the finding of probable cause?
 
C.
Where there is offense charged in a criminal complaint is not cognizable by the Regional
Trial Court and not covered by the Rule on Summary Procedure, and the record of the preliminary
investigation does not show the existence of probable cause, should not the judge refuse to issue a
warrant of arrest and dismiss the criminal case, or at the very least, require the accused to submit
his counter-affidavit in order to aid the judge in determining the existence of probable cause?
 
D.
Can a criminal prosecution be restrained?
 
E.
Can this Honorable Court itself determine the existence of probable cause? [20]
 
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On the other hand, respondent contends that the issues raised by the petitioners had already become moot
and academic when the latter posted bail and were already arraigned.
On 2 August 2000, this Court issued a TRO[21] enjoining the judge of the MTCC from proceeding in any
manner with Criminal Case Nos. 6683 to 6686, effective during the entire period that the case is pending before, or
until further orders of, this Court.
 
We will first discuss the issue of mootness.
 
The issues raised by the petitioners have not been mooted by the fact that they had posted bail and were
already arraigned.
 
It appears from the records that upon the issuance of the warrant of arrest, petitioners immediately posted
bail as they wanted to avoid embarrassment, being then the officers of Urban Bank. On the scheduled date for the
arraignment, despite the petitioners refusal to enter a plea, the court a quo  entered a plea of Not Guilty for them.
 
The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any irregularity in the
issuance of a warrant of arrest, that has already been superseded by Section 26, Rule 114 of the Revised Rule of
Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his
objections thereto.[22]
 
As held in Okabe v. Hon. Gutierrez:[23]
 
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is
a new one, intended to modify previous rulings of this Court that an application for bail or the
admission to bail by the accused shall be considered as a waiver of his right to assail the warrant
issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the
ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative
statutes are applicable. Curative statutes are by their essence retroactive in application. Besides,
procedural rules as a general rule operate retroactively, even without express provisions to that
effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at
the time of their effectivity. Before the appellate court rendered its decision on January 31, 2001,
the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate court to
have applied the same in resolving the petitioners petition for certiorari and her motion for partial
reconsideration.
 
Moreover, considering the conduct of the petitioner after posting her personal bail bond, it
cannot be argued that she waived her right to question the finding of probable cause and to assail
the warrant of arrest issued against her by the respondent judge. There must be clear and
convincing proof that the petitioner had an actual intention to relinquish her right to question the
existence of probable cause. When the only proof of intention rests on what a party does, his act
should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally
relinquish the particular right that no other explanation of his conduct is possible. x x x.
 
 
Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation
on the same day that they posted bail. Their bail bonds likewise expressly contained a stipulation that they were not

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waiving their right to question the validity of their arrest. [24] On the date of their arraignment, petitioners refused to
enter their plea due to the fact that the issue on the legality of their arrest is still pending with the Court.  Thus, when
the court a quo entered a plea of not guilty for them, there was no valid waiver of their right to preclude them from
raising the same with the Court of Appeals or this Court. The posting of bail bond was a matter of imperative
necessity to avert their incarceration; it should not be deemed as a waiver of their right to assail their arrest. The
ruling to which we have returned in People v. Red[25] stated:
 
x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province
of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there
were no court sessions being held in Marinduque. In view of these circumstances and the number of the
accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not
remaining in detention, and in no way implied their waiver of any right, such as the summary examination of
the case before their detention. That they had no intention of waiving this right is clear from their motion of
January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this
petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the
first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second
remaining undecided, but with an order to have it presented in Boac, Marinduque.
 
Therefore, the defendants herein cannot be said to have waived the right granted to them by
section 13, General Order No. 58, as amended by Act No. 3042.
 
 
The rest of the issues raised by the petitioners may be grouped into two, which are: (1) the procedural
aspect, i.e., whether the prosecution and the court a quo properly observed the required procedure in the instant
case, and, (2) the substantive aspect, which is whether there was probable cause to pursue the criminal cases to
trial.
THE PROCEDURAL ASPECT:
 
Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and
were not accorded the right to a preliminary investigation. Considering that the complaint of Atty. Pea was filed in
September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure.
 
The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and 9(a)
of Rule 112, to wit:
 
Section 1. Definition. Preliminary investigation is 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.
 
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information
for an offense cognizable by the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:
 
(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in such
number of copies as there are respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, a notary public, who must certify that he

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personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
 
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor
covered by the Rule on Summary Procedure. 
 
(a) Where filed with the fiscal. If the complaint is filed directly with the fiscal or state prosecutor, the
procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate
action based on the affidavits and other supporting documents submitted by the complainant.
(underscoring supplied)
 
 
The crime to which petitioners were charged was defined and penalized under second paragraph of Article
172 in relation to Article 171 of the Revised Penal Code.
 
Art. 172. Falsification by private individual and use of falsified documents. The penalty of prision
correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall
be imposed upon:
 
1. Any private individual who shall commit any of the falsifications enumerated in the next
preceding article in any public or official document or letter of exchange or any other kind of
commercial document; and
 
2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in
any private document commit any of the acts of falsification enumerated in the next preceding
article.
 
Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage
of another or who, with the intent to cause such damage, shall use any of the false documents
embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be
punished by the penalty next lower in degree.
 
 
Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4 months
and 1 day.[26] The next lower in degree to prision correccional is arresto mayor in its maximum period to prision
correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4 months [27] of
imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure, [28] the case falls
within the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary
investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not applicable since such
section covers only crimes cognizable by the RTC. That which is stated in Section 9(a) is the applicable rule.
 
Under this Rule, while probable cause should first be determined before an information may be filed in court, the
prosecutor is not mandated to require the respondent to submit his counter-affidavits to oppose the complaint. In
the determination of probable cause, the prosecutor may solely rely on the complaint, affidavits and other
supporting documents submitted by the complainant. If he does not find probable cause, the prosecutor may
dismiss outright the complaint or if he finds probable cause or sufficient reason to proceed with the case, he shall
issue a resolution and file the corresponding information.
 
The complaint of respondent, verbatim, is as follows:
 

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COMPLAINT AFFIDAVIT
 
I, MAGDALENO M. PEA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros
Occidental, after having been sworn in accordance with law hereby depose and state:
 
1.                  I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court
of Bago City entitled Atty. Magdaleno M. Pea v. Urban Bank, et al Impleaded therein as defendants
of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P.
Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours)
 
2.                  I filed the said case to collect my fees as agent of Urban Bank, Inc.
(hereinafter referred to as the bank) in ridding a certain parcel of land in Pasay City of squatters
and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex A.
 
3.                  In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which
is attached as Annex B), Answer dated 28 October 1996 (Annex C), and Pre-Trial Brief dated 28
January 1997 (Annex D) filed by the bank and the respondent members of the board, the said
respondents used as evidence the following documents:
 
a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie
Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex E), which states:
 
 
December 19, 1994
 
Urban Bank
Urban Avenue, Makati
Metro Manila
 
Gentlemen:
 
This has reference to your property located among Roxas Boulevard, Pasay City which you
purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December 1,
1994.
 
In line with our warranties as the Seller of the said property and our undertaking to deliver to you
the full and actual possession and control of said property, free from tenants, occupants or
squatters and from any obstruction or impediment to the free use and occupancy of the property
and to prevent the former tenants or occupants from entering or returning to the premises. In view
of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban Bank to
appoint Atty. Pea likewise as its authorized representative for purposes of holding/maintaining
continued possession of the said property and to represent Urban Bank in any court action that
may be instituted for the abovementioned purposes.
 
It is understood that any attorneys fees, cost of litigation and any other charges or expenses that
may be incurred relative to the exercise by Atty. Pea of his abovementioned duties shall be for the
account of Isabela Sugar Company and any loss or damage that may be incurred to third parties
shall be answerable by Isabela Sugar Company.
 
 
Very truly yours,
 
Isabela Sugar Company
 
By:
 
HERMAN PONCE

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JULIE ABAD
 
 
b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on behalf
of ISC, a copy of which is hereto attached as annex F, which states:
 
December 7, 1994
 
To: ATTY. CORA BEJASA
From: MARILYN G. ONG
 
RE: ISABELA SUGAR CO., INC.
 
Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar Company inc. to take charge of
inspecting the tenants would like to request an authority similar to this from the Bank to new
owners. Can you please issue something like this today as he (unreadable) this.
 
 
b.            Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a
copy of which is hereto attached as Annex G, which states:
 
December 9, 1994
 
Atty. Ted Borlongan
URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA
 
 
Attention: Mr. Ted Borlongan
Dear Mr. Borlongan
 
I would like to request for an authority from Urban Bank per attached immediately as the tenants
are questioning authority of the people who are helping us to take possession of the property.
 
 
Marilyn Ong
 
 
c.       Memorandum dated 20 November 1994, copy of which is attached as annex H,
which states:
 
 
MEMORANDUM
To: Atty. Magadaleno M. Pea
Director
 
From: Enrique C. Montilla III
President
 
Date: 20 November 1994
 
You are hereby directed to recover and take possession of the property of the corporation situated
at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City, immediately
upon the expiration of the contract of lease over the said property on 29 November 1994. For this
purpose, you are authorized to engage the services of security guards to protect the property
against intruders. You may also engage the services of a lawyer in case there is a need to go to

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court to protect the said property of the corporation. In addition, you may take whatever steps or
measures are necessary to ensure our continued possession of the property.
 
 
ENRIQUE C. MONTILLA III
President
 
4.      The respondent member of the board of the bank used and introduced the aforestated
documents as evidence in the civil case knowing that the same are falsified. They used thae
said documents to justify their refusal to pay my agents fees, to my damage and prejudice.
 
5.      The 19 December 1994 letter (Annex E) is a falsified document, in that the person who
supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did
not actually affix their signatures on the document. The execution of the letter was merely
simulated by making it appear that Ponce and Abad executed the letter on behalf of ISC when
they did not in fact do so.
 
6.      No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers,
employees or representatives of ISC. In the letter, Herman Ponce was represented to be the
President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994,
the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate
Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994, during which
Montilla, et al. Were elected is hereto attached as Annex I. On the otherhand, a list of the
stockholders of ISC on or about the time of the transaction is attached as Annex J.
 
7.      The same holds true with respect to the Memorandum dated 7 December 1994 and athe
letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said
name was ever a stockholder of ISC.
 
8.      Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his
signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his
signature on any such document.
 
9.      I am executing this affidavit for the purpose of charging  Teodoro C. Borlongan, Corazon M.
Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon
and Eric Lee, with the crime of use of falsified documents under Artilce 172, paragraph 2, of the
Revised Penal Code.(underlining ours)
 
10.  I am likewise executing this affidavit for whatever legal purpose it may serve.
 
FURTHER AFFIANT SAYETH NAUGHT.
 
 
Sgd. MAGDALENO M. PEA
 
 
It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely introduced and identified
the board of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon,
Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr. However, in the accusatory portion of the complaint
which is paragraph number 9, Mr. Ben Lim, Jr. was not included among those charged with the crime of use of
falsified documents under Article 172, paragraph 2, of the Revised Penal Code. The omission indicates that
respondent did not intend to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged to be a member of
the board. And there was no explanation in the Resolution and Information by the City Prosecutor why Mr. Ben Lim,

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Jr. was included. Moreover, as can be gleaned from the body of the complaint and the specific averments therein,
Mr. Ben Lim, Jr. was never mentioned.
 
The City Prosecutor should have cautiously reviewed the complaint to determine whether there were
inconsistencies which ought to have been brought to the attention of the respondent or, on his own, considered for
due evaluation. It is a big mistake to bring a man to trial for a crime he did not commit.
 
Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the
administration of justice. It should be realized, however, that when a man is hailed to court on a criminal charge, it
brings in its wake problems not only for the accused but for his family as well.  Therefore, it behooves a prosecutor
to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before
filing the information in court.  Anything less would be a dereliction of duty.[29]
 
Atty. Pea, in his Second Manifestation[30] dated 16 June 1999, averred that petitioners, including Mr. Ben
Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr. was not a member of the board of
directors of Urban Bank, as the latter participated and appeared through counsel in Civil Case No. 754 without
raising any opposition. However, this does not detract from the fact that the City Prosecutor, as previously
discussed, did not carefully scrutinize the complaint of Atty. Pea, which did not charge Mr. Ben Lim, Jr. of any
crime.
 
What tainted the procedure further was that the Judge issued a warrant for the arrest of the petitioners,
including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the board of
directors. With the filing of the motion, the judge is put on alert that an innocent person may have been included in
the complaint. In the Order[31] dated 13 November 1998, in denying the motion to quash, Judge Primitivo Blanca
ruled that:
 
Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the
information or which do not appear on the face of the information because said motion is
hypothethical admission of the facts alleged in the information x x x. (citations omitted.)

 
We cannot accept as mere oversight the mistake of respondent judge since it was at the expense of
liberty. This cannot be condoned.
 
In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to personally determine the
existence of probable cause:
 
Section 2, Article III of the Constitution provides:
 
Section 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.

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Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:
 
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by
the Rule on Summary Procedure.
 
(a) x x x.
 
(b) Where filed directly with the Municipal Trial Court. If the complaint or information is filed directly
with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule shall likewise
be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss
the complaint or information. Otherwise, he shall issue a warrant of arrest after personally
examining in writing and under oath the complainant and his witnesses in the form of searching
questions and answers.
 
 
Enshrined in our Constitution is the rule that [n]o x x x 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 x x x the persons x x x to be seized. [32] Interpreting the
words personal determination, we said in Soliven v. Makasiar[33] that it does not thereby mean that judges are
obliged to conduct the personal examination of the complainant and his witnesses themselves. To require thus
would be to unduly laden them with preliminary examinations and investigations of criminal complaints instead of
concentrating on hearing and deciding cases filed before them. Rather, what is emphasized merely is the exclusive
and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end,
he may: (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he
finds no probable cause, disregard the prosecutor's report and require the submission of supporting affidavits of
witnesses to aid him in determining its existence. What he is never allowed to do is to follow blindly the
prosecutor's bare certification as to the existence of probable cause. Much more is required by the
constitutional provision. Judges have to go over the report, the affidavits, the transcript of stenographic
notes if any, and other documents supporting the prosecutor's certification. Although the extent of the
judge's personal examination depends on the circumstances of each case, to be sure, he cannot just rely on the
bare certification alone but must go beyond it. This is because the warrant of arrest issues not on the strength
of the certification standing alone but because of the records which sustain it. [34] He should even call for the
complainant and the witnesses to answer the court's probing questions when the circumstances warrant. [35]
 
An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of
persons which ought not to be intruded by the State. [36]
 
Measured against the constitutional mandate and established rulings, there was here a clear abdication of the
judicial function and a clear indication that the judge blindly followed the certification of a city prosecutor as to the
existence of probable cause for the issuance of a warrant of arrest with respect to all of the petitioners. The
careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners that
the instant case is a matter of persecution rather than prosecution. [37]On this ground, this Court may enjoin the
criminal cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined.  However, there are
recognized exceptions which, as summarized in Brocka v. Enrile,[38] are:

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a. To afford adequate protection to the constitutional rights of the accused; [39]
 
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions;[40]
 
c. When there is a prejudicial question which is sub judice;[41]
 
d. When the acts of the officer are without or in excess of authority; [42]
 
e. Where the prosecution is under an invalid law, ordinance or regulation; [43]
 
f. When double jeopardy is clearly apparent;[44]
 
g. Where the court had no jurisdiction over the offense; [45]
 
h. Where it is a case of persecution rather than prosecution; [46]
 
i. Where the charges are manifestly false and motivated by the lust for vengeance; [47] and
 
j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.[48]

 
THE SUBSTANTIVE ASPECT:
 
Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of Falsified
Document in a judicial proceeding. The elements of the offense are as follows:
1.                  That the offender knew that a document was falsified by another person.
2.                  That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2
of Article 172.
3.                  That he introduced said document in evidence in any judicial proceeding. [49]
 
The falsity of the document and the defendants knowledge of its falsity are essential elements of the
offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the
Complaint-Affidavit of respondent Atty. Pea, attached to which were the documents contained in the Motion to
Dismiss filed by the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the
Answers, Pre-Trial Brief, the alleged falsified documents, copy of the regular meetings of ISCI during the election of
the Board of Directors and the list of ISCI Stockholders. [50] Based on these documents and the complaint-affidavit of
Atty. Pea, the City Prosecutor concluded that probable cause for the prosecution of the charges existed. On the
strength of the same documents, the trial court issued the warrants of arrest.
 
This Court, however, cannot find these documents sufficient to support the existence of probable cause.
 
Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any offense included therein has been committed by the
person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances
without restoring to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on
common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a

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crime has been committed and that it was committed by the accused. Probable cause demands more than
suspicion; it requires less than evidence that would justify conviction. [51]
 
As enunciated in Baltazar v. People,[52] the task of the presiding judge when the Information is filed with the
court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the
accused.
The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is
to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a
public trial.[53]
 
We do not see how it can be concluded that the documents mentioned by respondent in his complaint-
affidavit were falsified. In his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and Marilyn Ong, the
alleged signatories of the questioned letters, did not actually affix their signatures therein; and that they were not
actually officers or stockholders of ISCI.[54] He further claimed that Enrique Montillas signature appearing in another
memorandum addressed to respondent was forged. [55] These averments are mere assertions which are insufficient
to warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments cannot be
considered as proceeding from the personal knowledge of herein respondent who failed to, basically, allege that he
was present at the time of the execution of the documents. Neither was there any mention in the complaint-affidavit
that herein respondent was familiar with the signatures of the mentioned signatories to be able to conclude that
they were forged. What Atty. Pea actually stated were but sweeping assertions that the signatories are mere
dummies of ISCI and that they are not in fact officers, stockholders or representatives of the corporation. Again,
there is no indication that the assertion was based on the personal knowledge of the affiant.
 
The reason for the requirement that affidavits must be based on personal knowledge is to guard against
hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he
was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the
truth of what he has learned.[56] Hearsay is not limited to oral testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral statements. [57]
 
The requirement of personal knowledge should have been strictly applied considering that herein
petitioners were not given the opportunity to rebut the complainants allegation through counter-affidavits.
 
Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither of
the two made the representation that they were the president or secretary of ISCI. It was only Atty. Pea who
asserted that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI but
he did not present the stock and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn Ong
was not connected to ISCI in any other way. Moreover, even if Marilyn Ong was not a stockholder of ISCI, such
would not prove that the documents she signed were falsified.
 
The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutors
function without any showing of grave abuse of discretion or manifest error in his findings. [58] Considering, however,
that the prosecution and the court a quo committed manifest errors in their findings of probable cause, this Court
therefore annuls their findings.
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Our pronouncement in Jimenez v. Jimenez[59]  as reiterated in Baltazar v. People is apropos:
 
It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from
the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a
prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the
accused. Although there is no general formula or fixed rule for the determination of probable cause
since the same must be decided in the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before the judge nor run counter to the
clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution in
the hope that some credible evidence might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary
lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before.
It should continue to be so.
On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor as
well as the court  a quo as to the existence of probable cause.The criminal complaint against the petitioners should
be dismissed.
 
WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20 June
2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE. The Temporary Restraining Order dated 2
August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros
Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.
 
SO ORDERED.

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