Republic

SUPREME
Manila

of

the

Philippines
COURT

copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the
private prosecutor was given time to file an opposition thereto. 10 On November 24,
1978 the Judge denied the motion and set the arraigniment stating:

EN BANC

ORDER

June 30, 1987

For resolution is a motion to dismiss this rase filed by the procuting fiscal
premised on insufficiency of evidence, as suggested by the Undersecretary
of Justice, evident from Annex "A" of the motion wherein, among other
things, the Fiscal is urged to move for dismissal for the reason that the check
involved having been issued for the payment of a pre-existing obligation the
Hability of the drawer can only be civil and not criminal.

G.R. No. L-53373

MARIO
FL.
CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT
OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES,
represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET
AL., respondents.

GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to dismiss a
criminal case filed by the Provincial Fiscal upon instructions of the Secretary of
Justice to whom the case was elevated for review, may refuse to grant the motion
and insist on the arraignment and trial on the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the
Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit
Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52
(Quezon) '77.1 When the case was set for arraigment the accused filed a motion to
defer arraignment on the ground that there was a pending petition for review filed with
the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the
filing of the information. In an order of August 1, 1977, the presiding judge, His Honor,
Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order
was denied in the order of August 5, 1977 but the arraignment was deferred to
August 18, 1977 to afford time for petitioner to elevate the matter to the appellate
court. 3
A petition for certiorari and prohibition with prayer for a preliminary writ of injunction
was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP
No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge
Mogul from proceeding with the arraignment of the accused until further orders of the
Court. 5 In a comment that was filed by the Solicitor General he recommended that
the petition be given due course. 6 On May 15, 1978 a decision was rendered by the
Court of Appeals granting the writ and perpetually restraining the judge from
enforcing his threat to compel the arraignment of the accused in the case until the
Department of Justice shall have finally resolved the petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr.,
resolving the petition for review reversed the resolution of the Office of the Provincial
Fiscal and directed the fiscal to move for immediate dismissal of the information filed
against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by
the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a

The motion's thrust being to induce this Court to resolve the innocence of the
accused on evidence not before it but on that adduced before the
Undersecretary of Justice, a matter that not only disregards the requirements
of due process but also erodes the Court's independence and integrity, the
motion is considered as without merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for December 18,
1978 at 9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus with
petition for the issuance of preliminary writ of prohibition and/or temporary restraining
order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On
January 23, 1979 a restraining order was issued by the Court of Appeals against the
threatened act of arraignment of the accused until further orders from the Court. 13 In
a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted
the restraining order of January 23, 1979. 14 A motion for reconsideration of said
decision filed by the accused was denied in a resolution of February 19, 1980. 15
Hence this petition for review of said decision was filed by accused whereby
petitioner prays that said decision be reversed and set aside, respondent judge be
perpetually enjoined from enforcing his threat to proceed with the arraignment and
trial of petitioner in said criminal case, declaring the information filed not valid and of
no legal force and effect, ordering respondent Judge to dismiss the said case, and
declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without giving due
course to the petition required the respondents to comment to the petition, not to file
a motiod to dismiss, within ten (10) days from notice. In the comment filed by the
Solicitor General he recommends that the petition be given due course, it being
meritorious. Private respondent through counsel filed his reply to the comment and a
separate conunent to the petition asking that the petition be dismissed. In the
resolution of February 5, 1981, the Second Division of this Court resolved to transfer
this case to the Court En Banc. In the resolution of February 26, 1981, the Court En
Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the Solicitor
General filed a Manifestation in lieu of brief reiterating that the decision of the
respondent Court of Appeals be reversed and that respondent Judge be ordered to
dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by

information shall be prosecuted under the direction and control of the fiscal. 17 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. 18 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. 19 It cannot be
controlled by the complainant. 20 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. 21 They have equally the legal
duty not to prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case. 22
It is through the conduct of a preliminary investigation 23 that the fiscal determines the
existence of a puma facie case that would warrant the prosecution of a case. The
Courts cannot interfere with the fiscal's 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. 24 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 fiscal's discretion and control of criminal
prosecutions. 25 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. 26 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. 27 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 Fiscal's should normally prevail. 28 On
the other hand, neither an injunction, preliminary or final nor a writ of prohibition may
be issued by the courts to restrain a criminal prosecution 29 except in the extreme
case where it is necessary for the Courts to do so for the orderly administration of
justice or to prevent the use of the strong arm of the law in an op pressive and
vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any limitation or control.
The same is subject to the approval of the provincial or city fiscal or the chief state
prosecutor as the case maybe and it maybe elevated for review to the Secretary of
Justice who has the power to affirm, modify or reverse the action or opinion of the
fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the
rase be filed in Court or otherwise, that an information be filed in Court. 31
The filing of a complaint or information in Court initiates a criminal action. The Court
thereby acquires jurisdiction over the case, which is the authority to hear and
determine the case. 32 When after the filing of the complaint or information a warrant
for the arrest of the accused is issued by the trial court and the accused either
voluntarily submited himself to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused. 33
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. 34 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, 35 The only qualification is that the action of the Court must
not impair the substantial rights of the accused. 36 or the right of the People to due
process of law. 36a
Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion
to dismiss was submitted to the Court, the Court in the exercise of its discretion may
grant the motion or deny it and require that the trial on the merits proceed for the
proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by
the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in
the prosecution? A state prosecutor to handle the case cannot possibly be designated
by the Secretary of Justice who does not believe that there is a basis for prosecution
nor can the fiscal be expected to handle the prosecution of the case thereby defying
the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see
that justice is done and not necessarily to secure the conviction of the person
accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty
of the fiscal to proceed with the presentation of evidence of the prosecution to the
Court to enable the Court to arrive at its own independent judgment as to whether the
accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such
circumstances much less should he abandon the prosecution of the case leaving it to
the hands of a private prosecutor for then the entire proceedings will be null and
void. 37 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. 38
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.

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, the petition is DISMISSED for lack of merit without pronouncement as
to costs.
SO ORDERED.
Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Padilla,
Bidin,
Sarmiento
and
Cortes,
JJ.,
concur.
Teehankee C.J., took no part.

Republic
SUPREME
Manila

of

the

Philippines
COURT

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.

EN BANC

IV

[G.R. No. 113930. March 5, 1996]

The facts on record do not establish prima facie probable cause and Criminal Case
No. Q-93-43198 should have been dismissed.[5]

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 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 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 facieevidence, 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.
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 ExParte Motion for Issuance of Warrants of Arrest.[19]

5. The evidence presented clearly showed no malicious intent on the part

of the accused.

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.

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 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;

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.
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.

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.
There is nothing in Crespo vs. Mogul[51] 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 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.
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 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 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, 1993 as 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).
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., L38383, May 27, 1981, 104 SCRA 607);
c. When
there
is
a
pre-judicial
question
judice (De Leon vs. Mabanag, 70 Phil. 202);

which

is sub

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
(Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);

prosecution

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, L6374, 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 nonexistence 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-9343298. 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 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.
Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur.
Narvasa, C.J. (Chairman), see separate concurring opinion.
Regalado, J., joins the dissent of J. Puno, pro hac vice.
Romero, Melo and Mendoza, JJ., join in the dissent of Justice Puno.

Puno, J., dissents.

Vitug, J., concurs in the opinions of the ponente and the Chief Justice.
Kapunan, J., in the result.
Francisco, J., No part. Ponente of the assailed decision.
Panganiban, J, No Part. Daughter is a management officer of Pepsi Cola,
Head Office, NY, USA.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 164664

July 20, 2006

CARLOS
C.
FUENTES, petitioner,
vs.
HON. SANDIGANBAYAN, Second Division, HON. SIMEON V. MARCELO,
Ombudsman, EUSEBIO M. AVILA, JR., Special Prosecution Officer, Office Of
the Ombudsman, GERRY MORALES and FRANCISCO S. JIMENEZ,
JR., respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure for
the nullification of the Resolution1 of the Sandiganbayan (Second Division) in Criminal
Case No. 27518 granting the motion of the Special Prosecutor for leave to withdraw
the Information for want of probable cause to file the same, as well as the Resolution
denying the motion for reconsideration filed by petitioner Carlos Fuentes.
Petitioner was the sales representative of the Davao Toyozu, Inc., a corporation with
offices in Davao City, which was engaged in the importation and sale of Japanese
surplus vehicles and spare parts. The Municipality of Baganga, Davao Oriental, called
for a public bidding for the sale and supply of six (6) Japanese surplus mini dump
trucks. The Abstract of Bids, where Davao Toyozu, Inc. appears to be the lowest
bidder, was signed by the members of the Bid Committee, including Municipal
Treasurer Francisco Jimenez, Jr. and then Municipal Mayor Remegio G.
Nazareno.2 On the same day, February 27, 2001, Municipal Treasurer Francisco
Jimenez Jr., with the approval of the Mayor, issued Purchase Order No. 046
for P1,710,000.00 for the purchase of six mini dump trucks. 3In May 2001, Davao
Toyozu, Inc., through petitioner, delivered the six trucks which were duly accepted by
the Municipality after inspection.4 The price of four of the six units was then fully paid.
In the meantime, Gerry5 J. Morales was elected Mayor of the Municipality and
assumed office in July 2001. Municipal Budget Officer Bill Rojas, Accountant
Emeritos M. Jovilla, and Municipal Treasurer Francisco Jimenez, Jr. approved a
Request for Obligation of Allotment 6 for P274,377.27, the price of one of the two still
unpaid mini dump trucks. Jovilla certified that unobligated allotments were available,
Rojas certified to the existence of the appropriation for the expenditure, while
Jimenez certified to the availability of funds. However, Morales refused to approve the
request.7 Morales also refused to approve the disbursement voucher for the
expenditure which Jovilla had approved.8
The Municipality, through petitioner, had also entered into a contract with East
Lambajon Trading for the rental of one bulldozer and the leveling of Sitio Dalingding,
Barangay Kinablangan, Baganga, for P57,991.77. This transaction was approved by
Engr. Fedelito Rabuya, the Baganga General Foreman, and Mayor Remegio
Nazareno.9 The undertaking was completed and duly accepted, as evidenced by the
Certificate of Completion and Acceptance 10 signed by Rabuya, Barangay Captain

Bonifacio Ignacio and Mayor Remegio Nazareno. Rabuya, Jovilla, Rojas and
Jimenez approved the Request for Obligation of Allotment for the specified
amount,11 and the Disbursement Voucher.12 Mayor Remegio Nazareno approved the
Disbursement Voucher. However, Mayor Morales refused to authorize the release of
the amount.
The Municipality had also entered into a contract with East Lambajon Trading/Carlos
Fuentes for a two-day quarrying (bulldozing works) at Sitio Mahug, Barangay Ban-ao,
Baganga for P20,358.78. The project was completed per specification and duly
accepted by the Municipality, as evidenced by the Certificate of Completion and
Acceptance signed by Rabuya, Ignacio and Nazareno. Jovilla, Rojas and Rabuya
approved the Request for Obligation of Allotment and Disbursement Voucher for the
amount, but Jimenez refused to do so.13 Thus, Morales and Jimenez refused to allow
the disbursement of the amount and its remittance to the East Lambajon Trading.
On August 8, 2001, petitioner withdrew some of the vouchers and other documents
relative to the bulldozing work from the Office of the Municipal Treasurer. On August
16, 2001, he made demands14 for Morales to allow the payment of the municipality's
account, which Morales rejected. On September 10, 2001, petitioner withdrew the
rest of the vouchers and other documents from the Office of the Municipal Treasurer
relative to the supply of the six dump trucks.
Petitioner thereafter executed an Affidavit-Complaint 15 against Morales and Jimenez
and all other responsible officers of the Municipality charging them administratively of
having violated Section 3(e) of Republic Act (R.A.) No. 3019, and filed the same in
the Office of the Ombudsman. In a letter dated September 12, 2001, the Office of the
Ombudsman suggested to Morales that petitioner's claims be paid. The Ombudsman
sent a follow-up letter dated October 16, 2001. Morales replied, alleging that he
needed time to review the transactions relating to petitioner's claims.
Morales submitted his counter-affidavit in which he alleged that he assumed office as
Municipal Mayor of the Municipality of Baganga last June 30, 2001. As Local Chief
Executive, it was his duty to exercise prudence and care to scrutinize all documents
covering all obligations incurred by the previous administration and determine if they
are all in order. The main reason for the delay in processing the payment is the fact
that complainant got all the vouchers and other relevant documents from the Office of
the Municipal Treasurer last August 8 and September 10, 2001, as shown in the
logbook of the said office; thus, the Office of the Municipal Treasurer could not
process them for payment. He averred that, "as long as all documents are legal and
in accordance with law and existing rules and regulations," the Municipality will honor
its just and lawful obligations.16
In his Counter-Affidavit, Jimenez alleged that the payment for the two remaining
dump trucks was expected sometime in September 2001, during which payment
could not be effected because the complainant withdrew his claim from the General
Services Section of the Municipal Treasurer. The complainant likewise withdrew his
claim for the payment of the bulldozing services on August 8, 2001. He added that
the internal allotment share of the municipality for July 2001 was received only in
August 2001, and that the claims would have been paid in the latter part of that
month had they not been withdrawn. He also alleged that the new Municipal Mayor
could not be blamed for the non-payment of the three because it was only in July
2001 when the new municipal assumed office, and the claims had to be reviewed by

them. He also averred that there were also defects in the two claims for the
bulldozing works. The Municipal Mayor should also be the signatories on both
Requests for Obligation of Allotment, and the Disbursement Vouchers, as he is the
administrator of the fund to which the project had been charged, not the Project
Development Officer I of the Municipal Planning and Development Office. According
to Jimenez corrective acts could have been executed to both claims if only the
complainant had not withdrawn the same. He assured that as soon as the claims
were resubmitted and duly corrected, the final payment would be forwarded to
petitioner.

Municipal Treasurer of the same municipality, both while in the performance

of their official functions, committing the offense in relation to their office,
taking advantage of their official positions, conspiring and confederating with
each other acting with evident bad faith, did then and there willfully,
unlawfully and criminally cause undue injury to complainant Carlos C.
Fuentes, by refusing to pay his claims/transactions, lawfully and legally
incurred by the municipality, despite having complied with all the pertinent
documents required to support his claims in the total amount of P351,736.05,
to the damage and prejudice of the complainant.

In reply, petitioner alleged that the defense of Morales and Jimenez was made as an
afterthought. His lawyer already sent a demand letter as early as August 18, 2001,
and respondent Mayor Morales merely replied that payment "will be subject to the
availability of the funds of the municipality," and would be made after the municipal
engineer has finished inspecting the bulldozing works. Petitioner further alleged that
the new administration's duty to pay is already ministerial, in view of the
completeness of the documentation and the project implementation on all
claims.17 Thus, the claim that the transaction is "subject to review" is a mere alibi.

CONTRARY TO LAW.22

Petitioner also pointed out that in other transactions which the Municipality had with
other entities/individuals, the payments were immediately received by the "brother of
the Mayor," some of which had even occurred after the conclusion of his (petitioner's)
transactions with the Municipality.18
The respondents countered by submitting an affidavit of Bernardo Y. Arquiza, the
General Manager of Davao Toyozu, Inc., notarized by their counsel, that he had not
authorized petitioner to file the complaint against the respondents. 19 Petitioner
responded by submitting documents, including a letter from Arquiza dated December
8, 2001, showing that he transacted for the Davao Toyozu, Inc. 20
On May 27, 2002, the Ombudsman approved a Resolution 21 finding probable cause
against the respondents for violation of Section 3(e) of R.A. No. 3019. The defenses
offered by the respondents were rejected as mere "alibis," considering that the
disbursement vouchers and other supporting documents for payment of the
transactions between the Municipality and Davao Toyozu, Inc. had been processed
as early as August 3, 2001 (for the dump truck) and July 4, 2001 (for the bulldozing
works). It held that respondents simply refused to pay petitioner's claims upon
demand and despite receiving letters from the Ombudsman. Respondent Mayor
made no mention about Fuentes' withdrawal of the vouchers and other documents in
his Letter dated September 20, 2001. It pointed out that the vouchers and documents
should not have been turned over to Fuentes in the first place. The claim that no
funds were available was belied by the allotments which were duly certified by the
Budget Officer and Municipal Accountant.
Thus, the prosecuting Ombudsman filed an Information dated May 22, 2002 with the
Sandiganbayan charging Morales and Jimenez with violation of Section 3(e) of R.A.
No. 3019. The accusatory portion of the Information reads:
That on 4 July 2001, or sometime prior or subsequent thereto in the
Municipality of Baganga, Davao Oriental, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused, Gerry J.
Morales, a high-ranking public officer being the Municipal Mayor of the
Municipality of Baganga, Davao Oriental, and Francisco S. Jimenez, Jr.,

Respondents filed a motion for reconsideration, which the Ombudsman denied. This
prompted respondents to file a Motion for Reinvestigation dated July 29, 2002 before
the Sandiganbayan. They also filed a Manifestation dated August 15, 2002, where it
was admitted that there were available funds for payment of petitioner's claims,
including the two remaining mini dump trucks amounting to P570,000.00. However,
while the Municipality was willing and capable of paying its obligations, payment
could not be effected because petitioner withdrew all the vouchers and other
pertinent documents from the Office of the Municipal Treasurer. Respondents pointed
out that petitioner failed to refute this statement, and that the Ombudsman had hastily
resolved the case without even furnishing a copy to their counsel of record. 23
On September 20, 2002, the Municipality made a full payment of the dump trucks, for
which Davao Toyozu, Inc. issued Official Receipt No. 36714. The Municipal Treasurer
had apparently extracted copies of the vouchers and documents relative to the claims
of petitioner from the records of the Commission on Audit, thus enabling them to
prepare the checks thereon.
On December 18, 2002, the Sandiganbayan granted the motion of the accused for a
reinvestigation. For his part, Special Prosecutor Officer I Eusebio M. Avila, Jr.
requested a special audit of the Local Government of Baganga for the period of
February to July 2001 relative to Criminal Case No. 27518. A panel of State Auditors
from the Commission on Audit (COA) was then formed to conduct the same.
In the meantime, in a Letter dated January 3, 2003 addressed to petitioner, Assistant
Municipal Treasurer Alicia B. Manligoy informed petitioner that after consultation with
the COA, the withdrawn documents had been reproduced and used as the basis to
pay the Municipality's obligations, and that his checks were ready for release from the
cashier, as follows:
Date

Particulars

01-03-03

Dozing
Mahug

Sitio PNB-Mati #52921

P 18,841.15

01-03-03

Dozing work Rehab of PNB-Mati #52920

Dalingding Road

P 53,320.91
=========

work

Check No.
of

Total

Amount
(Net of VAT)

P 72,162.0624

Petitioner was also requested to claim the checks from the cashier along with the
appropriate official receipts.
Petitioner failed to claim the checks. Thus, in a Letter dated March 3, 2003,
respondent Jimenez requested Provincial Attorney Alejandro A. Aquino to summon
petitioner to receive the checks.25 Atty. Aquino forwarded a Letter dated March 10,
2003 to petitioner, requesting him to claim the checks from Jimenez. 26 However,
petitioner still failed to claim the checks.
The Municipal Treasurer replaced the checks on April 3, 2003, and they were then
delivered to petitioner on April 8, 2003. Petitioner also received from the Municipal
Treasurer the payment of the last unit of the dump truck, and received the balance of
his commission from Davao Toyozu, Inc. on January 8, 2003. Thus, the Municipality
had already settled its obligations to petitioner, who was acting for his principals.
On April 16, 2003, the State Auditors submitted their Report to the Office of the
Special Prosecutor relative to the purchase of six mini dump trucks and the contract
of the Municipality for bulldozing work. According to State Auditors, the bulldozing
work contracts were not valid for lack of vital documents to support the transactions.
The disbursement vouchers (DVs) and the checks covering the payments were not
supported by contracts which should have been executed between the Municipality
and petitioner as contractor. Moreover, no public bidding was conducted; thus,
although the bulldozing works had actually been completed and paid for, it was not a
valid government transaction due to non-compliance of government auditing rules
and regulations.
Based on his review of the Report of the State Auditors and petitioner's Comment
thereon, Special Prosecutor Avila submitted a Memorandum to the Ombudsman
recommending that the Information against the accused be withdrawn for lack of
sufficient evidence as shown by the following findings: (1) there was no evident bad
faith in this case since the accused had valid reasons for refusing to pay petitioner's
money claims of P351,736.05, which was confirmed in the audit's findings; (2) the
acquisition of the six dump trucks "was not a valid transaction considering that the
Disbursement Vouchers (DVs) covering payments thereof are not supported by
complete documentation. Evaluation of the available documents attached to DVs
revealed some inherent technical defects and irregularities in the issuance of the
Purchase Order (P.O.) and submission of bidding documents by Davao Toyozu, Inc.";
and, (4) the bulldozing work contracts were likewise not valid as they were not
supported by the proper documents and no public bidding was conducted. Thus,
according to Avila the accused were justified in withholding payment of petitioner's
claims, considering further that the documents had been withdrawn from the Office of
the Treasurer, and that there was no element of undue injury since the Municipality's
obligations were eventually paid.27
The Ombudsman approved the recommendation of the Special Prosecution Officer.
Thus, a Motion for Leave to Withdraw the Information dated September 3, 2003 was
filed before the Sandiganbayan. Appended thereto was a copy of Special Prosecutor
Avila's Memorandum to the Ombudsman.
Petitioner opposed the motion.
On January 19, 2004, the Sandiganbayan issued a Resolution 28 granting the motion
and dismissing the case without prejudice. It ratiocinated that based on the re-

investigation conducted, two essential elements of the crime being charged to

establish probable cause, i.e., evident bad faith on the part of the accused and undue
injury on the part of complainant, are absent. The prosecution committed no grave
abuse of discretion in seeking the withdrawal of the Information since it is the
Prosecutor who has the active direction and control of the institution of a criminal
action. The anti-graft court applied the principles laid down in Crespo v. Mogul, 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.
Petitioner received a copy of the resolution on February 4, 2000 and moved to have it
reconsidered on February 17, 2004. The Sandiganbayan denied the motion on June
9, 2004.29 Petitioner received a copy of the June 9, 2004 Resolution on August 16,
2004, and thereafter filed the instant petition for certiorari with this Court against the
Ombudsman, the Special Prosecutor, the Sandiganbayan, respondents Morales and
Jimenez.
Petitioner alleges that:
A. THE OFFICE OF THE OMBUDSMAN, ACTING THROUGH SPECIAL
PROSECUTION OFFICER II EUSEBIO M. AVILA, SR. GRAVELY ABUSED
ITS DISCRETION WHEN IT SOUGHT THE WITHDRAWAL OF THE
INFORMATION AGAINST THE RESPONDENTS RESULTING TO (sic) THE
DISMISSAL OF THE CASE.
B. THE HONORABLE SANDIGANBAYAN, SECOND DIVISION SERIOUSLY
ERRED AND GRAVELY ABUSED ITS DISCRETION WHEN IT GRANTED
THE WITHDRAWAL OF THE INFORMATION AGAINST THE
RESPONDENTS AS SOUGHT BY THE OFFICE OF THE OMBUDSMAN
RESULTING TO THE DISMISSAL OF THE CASE.30
Petitioner argues that the Prosecution is not bound by the findings and
recommendations of the State Auditors; after all, the Ombudsman had found
probable cause against respondents after the requisite preliminary investigation. He
insists that the preliminary investigation conducted by the Ombudsman is distinct and
separate from the special audit conducted by the State Auditors; hence, the outcome
of the State Auditors' investigation is not determinative of the absence or existence of
probable cause against respondents.
Petitioner reiterates that his withdrawal of the documents evidencing his claims was
not the paramount reason for non-payment of his claims it was the alleged nonavailability of funds. However, the documents on record show that there were
available funds. If there were any defects OR irregularities and deficiencies relative to
the transactions involved as found by the State Auditors, the persons solely liable are
the municipal officials alone for failing to act thereon.
Petitioner further points out that there was delay in the payment of his claims, and
that such payment constitutes an admission of respondents' criminal liability.
Moreover, the fact that his complaints were eventually paid does not extinguish their
incipient criminal liability.
Petitioner asserts that the defects and deficiencies adverted to by the State Auditors
should be ventilated during the trial and cannot be used as basis for the withdrawal of
the Information. He claims that he sustained undue injury, that is, the unnecessary

expenses he incurred related to the subsequent transactions and the collection of his
claims, such as litigation expenses. He admits that while the consequential undue
injury cannot be ascertained yet, this has yet to be proven during the trial of the case.
In any event, proof of the extent or quantum of damage is not essential, it being
sufficient that the injury suffered or benefit received can be perceived substantial
enough and not merely negligible. He insists that he would not have sustained undue
injury if the private respondents/accused had only acted accordingly and paid his just
and valid claims on time.31 He avers that the respondents and the Sandiganbayan
cannot rely on the ruling of this Court in Llorente32 because of the divergent factual
setting therein.
The issues are the following: (1) whether a petition for certiorari under Rule 65 of the
Rules of Court is the proper remedy of the petitioner to question the assailed
Resolution of the Sandiganbayan; and (2) whether the Sandiganbayan committed
grave abuse of discretion amounting to excess or lack of jurisdiction in granting the
Special Prosecutor's motion to withdraw the Information against respondents Morales
and Jimenez based principally on the Special Audit Report of the State Auditors.
On the first issue, the petition for certiorari filed by petitioner under Rule 65 of the
Rules of Court is inappropriate. It bears stressing that the resolution of respondent
Sandiganbayan granting the motion of the Special Prosecutor for leave to withdraw
the Information and ordering the case dismissed without prejudice is final because it
disposed of the case and terminated the proceedings therein, leaving nothing to be
done with it by the court.33 Thus, the proper remedy is to file a petition for review with
this Court under Rule 45 on a question of law. The pertinent provision reads:
SECTION 1. Filing of petition with Supreme Court. A party desiring to
appeal by certiorari from a judgment or final order or resolution of the Court
of Appeals, the Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law, may file with the Supreme Court a verified
petition for review on certiorari. The petition shall raise only questions of law
which must be distinctly set forth.
Thus, because he had the remedy of appeal via petition for review under Rule 45 of
the Rules of Court, petitioner is proscribed from filing a petition for certiorari under
Rule 65. The availability of the remedy of appeal, which is likewise speedy and
adequate, constitutes a bar to the filing of a certiorari action under Rule 65.
While the Court may consider a petition for certiorari as a petition for review under
Rule 45 of the Rules of Court in exceptional cases, Section 2 provides that such
petition must be filed within the prescribed period, thus:
SEC. 2. Time for filing; extension. The petition shall be filed within fifteen
(15) days from notice of the judgment or final order or resolution appealed
from, or of the denial of the petitioner's motion for new trial or reconsideration
filed in due time after notice of the judgment. On motion duly filed and
served, with full payment of the docket and other lawful fees and the deposit
for costs before the expiration of the reglementary period, the Supreme
Court may for justifiable reasons grant an extension of thirty (30) days only
within which to file the petition.
Indubitably, the petition, even if considered as petition for review, was time-barred.
This is so because petitioner received the resolution of the Sandiganbayan denying

his motion for reconsideration on June 21, 2004, hence, he had only until July 5,
2004 within which to file his petition for review. The petition was filed only on August
16, 2004, after the reglementary period had already lapsed. Moreover, the petition
for certiorari filed by the petitioner, which is an independent action and not a mode of
appeal, did not toll the running of the reglementary period. 34
Nevertheless, we have reviewed the records and find that even on its merits the
instant petition is destined to fail.
The rule is that as far as crimes cognizable by the Sandiganbayan are concerned, the
determination of probable cause during the preliminary investigation, or
reinvestigation for that matter, is a function that belongs to the Special Prosecutor, an
integral part of the Office of the Ombudsman. The Ombudsman is empowered to
determine, in the exercise of his discretion, whether probable cause exists, and to
charge the person believed to have committed the crime as defined by law. Whether
or not the Ombudsman has correctly discharged his function, i.e., whether or not he
has made a correct assessment of the evidence of probable cause in a case, is a
matter that the trial court may not be compelled to pass upon. Thus, in Crespo v.
Mogul,35 the Court ruled:
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 prosecutions by private persons. x x x
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 after an investigation they become convinced
that the evidence adduced is not sufficient to establish a prima facie case.36
As a rule, courts should not interfere with the Ombudsman's investigatory power,
exercised through the Special Prosecutor, and the authority to determine the
presence or absence of probable cause, except when the finding is tainted with grave
abuse of discretion amounting to lack or excess of jurisdiction.37 In such case, the
aggrieved party may file a petition for certiorari under Rule 65 of the Rules of
Court.38 Indeed, if the Ombudsman does not take essential facts into consideration in
the determination of probable cause, there is abuse of discretion. 39 As we ruled
in Mendoza-Arce v. Office of the Ombudsman (Visayas),40 a writ of certiorari may
issue in any of the following instances:
1. When necessary to afford adequate protection to the constitutional rights
of the accused;
2. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub judice;

4. When the acts of the officer are without or in excess of authority;

5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;

According to the State Auditors, respondents Morales and Jimenez should not
entertain petitioner's claims not only because the latter's transactions with the
Municipality were defective and irregular, but were in fact illegal. Respondents and
the other municipal officials should have been firm in their decision to withhold the
payment of petitioner's claims based on the following reasons. As the State Auditors
stated in their Report:

8. Where it is a case of persecution rather than prosecution;

E. The validity of the claim of the Municipal Treasurer Francisco S. Jimenez,

Jr. that Carlos Fuentes withdrew from the office of the former the claim
documents for the two aforesaid (a and b) transactions which resulted in the
delay of the processing of payment.

9. Where the charges are manifestly false and motivated by the lust or
vengeance;
10. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied.41
On the other hand, if the Special Prosecutor files a motion to dismiss the case or
motion for leave to file a motion to withdraw the Information after a reinvestigation
authorized by the court, the resolution of such motion rests on the sound discretion of
the trial court. The anti-graft court is the best and sole judge on what to do with the
case before it, and may grant or deny the motion. As we held in Crespo v. Mogul:42
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.43
In a case where a motion is filed by the Prosecution for leave to withdraw the
Information on the ground that, after a reinvestigation previously authorized by the
court, no probable cause exists as against the accused, the court may deny or grant
the motion based on its own independent assessment of the result of the
reinvestigation submitted by the Prosecution to the trial court. The court may deny or
grant such motion, not out of subservience to the Special Prosecutor, but in the
faithful exercise of judicial discretion and prerogative. 44
In this case, the Sandiganbayan granted the Special Prosecutor's motion and
dismissed the case based on its own assessment of the report of the State Auditors,
and on the Special Prosecutor's finding that there is no probable cause for the
prosecution of respondents for violation of Section 3(e) of R.A. 3019, particularly the
absence of bad faith on the part of the respondents and undue injury on the part of
the petitioner. In its Resolution, the Sandiganbayan made it clear that the dismissal of
the case was without prejudice to the filing of the proper charges, if warranted by the
evidence. In fine, respondents Morales and Jimenez not excluding petitioner, could
still be indicted, if the evidence so warrants, for a crime or crimes other than those
defined in Section 3(e) of R.A. 3019.

Records show that the disbursement vouchers and available documents

related thereto were withdrawn by Mr. Carlos Fuentes (Annexes L, M and N)
from the Office of the Municipal Treasurer of Baganga, Davao Oriental, to
wit:
Payee

Transaction

Amount
Withdrawn

Date

1.
East
Lambajon Dozing
work/repair/ P57,000.00
Trading/ Carlos Fuentes rehabilitation of Daling-daling
Road
Section,
Brgy.
Kinablangan

8/08/01

2.
East
Trading

8/08/01

Lamajon Dozing work of Sitio Mahug 20,358.78

Brgy. Road, Brgy. Bana-ao

3. Davao Toyozu, Inc.

Partial Payment for purchase 274,377.27

of six (6) units dump truck
(equivalent to one (1) unit

9/10/01

The concerned local officials should have been firm in their decision of
withholding the payments based on the following issues, viz:
1. Withdrawals of vouchers with related available documents without
returning of the same despite demand thereof; and
2. Incomplete documentation and other irregularities/deficiencies observed
which should have been pointed out to the complaining parties to effect their
correction/completion or having initiated the same by themselves before
payment was to be made.
F. The validity of the payment made by the Municipality of Baganga to Davao
Toyozu, Inc. in the amount of P570,000.00.
As discussed in Items A and C.1, the validity of payment made by the
Municipality of Baganga to Davao Toyozu, Inc. in the amount of P570,000.00
less withholding tax of P21,245.45 could not be considered valid as this was
based on insufficient and defective documents. 45
These findings confirmed the correctness of the respondent's intial refusal to pay
petitioner's claims, initially because the latter had withdrawn the pertinent vouchers
and documents. Without the documents, respondents could not ascertain whether
petitioner's claims were in accord with law, rules and regulations. It bears stressing

that respondents had been insisting all along that petitioner's claims would be paid,
provided that said claims are determined lawful.
For the respondents to be criminally liable for violation of Section 3(e) of R.A. 3019,
the injury sustained by petitioner must have been caused by positive or passive acts
of manifest partiality, evident bad faith, or gross inexcusable negligence. 46 Since the
State Auditors even recommended that respondents should not pay petitioner's
claims due to irregularities in the transactions and the patent nullity of the same, it
cannot be said that the "injury" claimed to have been sustained by petitioner was
caused by any of respondents' overt acts.
On hindsight, had petitioner not withdrawn the vouchers and other documents relative
to his claims from the Office of the Municipal Treasurer on August 8 and September
10, 2001, respondent Mayor would have uncovered what the State Auditors disclosed
in its report:
1. For transactions covering purchase of six (6) units Mini Dump Truck
A. Purchase Order (Annex C) issued to Davao Toyozu, Inc. in the amount
of P1,710,000.00 did not stipulate the following basic information, viz:
1. Office to which the delivery shall be made
2. Provision for penalty in case of late or non-delivery
3. Period of delivery
4. Other terms and conditions
The following shall clearly appear in every purchase/letter order or contract
aside from other requirements prescribed under existing laws and
regulations:
xxx;
c. office to which the delivery should be made.
xxx;
e. provisions for penalty in case of late or non-delivery;

3. Minutes of the bidding document (Advertisement for Bids, Annex E) which

quoted the lowest/awarded price of P285,000.00 per unit signed by one Mr.
Leo Reyes, a representative of Carlos Fuentes in the bidding (Annex F) did
not bear the name of Davao Toyozu, Inc. to indicate its official participation in
the bidding process. Neither Mr. Reyes nor Mr. Fuentes were identified as a
responsible official of Davao Toyozu, Inc. to represent in the conduct of
public bidding contrary to the provisions of Sec. 43 of COA Cir. No. 92-386
which partly states that:
Duties of Bidders. xxx
Bids shall be signed by a responsible officer of the company or firm
authorized for the purpose whose name and designation must be clearly
indicated in the bid.
[4] Section 44 of COA Cir. No. 92-386 requires that all bids must be
accompanied by statement declaring under oath all the business
establishments or interest in the locality of the bidders. The statement shall
include, among others, the business name, business address and the nature
of the business. This requirement was not complied.
[5] The Abstract of Quotation of Bids (Annex G) did not indicate the date the
bidding was conducted and [no] action on the Award of Contract by the
Committee on Award was made.
[6] The date of receipt of Purchase Order (PO) by the dealer/supplier.
Insufficiency of such information in the preparation/issuance of the Purchase
Order did not comply with the provisions of Sec. 74 of COA Circular No. 92386 dated Oct. 20, 1992 which prescribes Rules and Regulations on Supply
and Property Management in the Local Government which states that:
7. The other participating bidders did not qualify as bona fide bidders
required under Sec. 42 of COA Cir. No. 92-382 as the existence of their
business establishments could not be ascertained. They had not submitted
any business permit/license to engage in [the] business of selling dump
trucks.

xxx

C. The delivery of six (6) units Dump Truck was not inspected by the
designated inspector or inspection committee as no inspection report thereof
is attached to the voucher. Likewise, there was no Report of Acceptance by
the designated General Services Officer or Municipal Treasurer.

The date when the purchase/letter order was received by the supplier or
contractor shall be indicated clearly.

D. There was no Inspection Report of the COA Technical Audit Specialist as

to condition and specifications of the heavy equipment delivered.

B. Strict compliance of the requirements in the conduct of competitive public

bidding had not been observed, to wit:

E. Official Receipt (OR) No. 36714 of Davao Toyozu, Inc. dated Sept. 20,
2002 for full payment in the amount of P548,754.55 is not the original copy
(only xerox copy is attached).47

xxx;
g. period of delivery;

1. Bidder's bond of P8,160.00 (Annex D) was insufficient which is not

equivalent to 5% of the bid price of P20,000.00 as required under Sec. 3 of
COA Cir. No. 92-386;
2. No performance bond, equivalent to 10% of the value of the contract or
purchase order was submitted;

Relative to the bulldozing works of the barangay road, the State Auditors further
declared that the transactions were not supported by the following vital documents:
1. Contract between the Municipality of Baganga and Mr. Carlos C. Fuentes;

2. Pertinent documents on public bidding conducted as basis of awarding

contract to Mr. Fuentes;
3. DTI registration of East Lambajon Trading in the name of Mr. Carlos
Fuentes as a duly-registered contractor qualified to undertake government
infrastructure projects and business license/permit to engage in the same
business;
4. Proof of existence of business establishment of East Lambajon Trading;
5. The infrastructure projects contracted were not covered by appropriate
and duly-accomplished Project Program of Work which should include
detailed specifications. Likewise, the same document should have been
prepared by the Municipal Engineer's Office.
6. Transactions were not covered by any requisition document/Purchase
Request;
7. Transactions under Check Nos. 12741928 for P18,841.15 and 12741929
for P53,320.91 were supported by photocopies of Request of Obligation and
Allotment (ROA) and Certificate of Completion and Acceptance instead of
original copies as these were taken by Mr. Fuentes as informed by the
Municipal Accountant (Annex H).48
Petitioner's contention, that the reinvestigation made by the Special Prosecutor was
independent of the audit made by the State Auditors during the period of February to
July 2001 relative to Criminal Case No. 27518 before the Sandiganbayan, is not
correct. The fact is that the special audit conducted by the State Auditors was to aid
the Ombudsman, through the Special Prosecutor, in reinvestigating the case as
ordered by the Sandiganbayan. The results of the special audit would confirm
whether the initial finding of probable cause for violation of Section 3(e) of R.A. No.
3019 against respondents was made with basis. The ultimate objectives of the
Special Prosecutor and the State Auditors were thus congruent and complementary.
It turned out that, based on the Report of the State Auditors, there was no probable
cause for violation of Section 3(e) of R.A. No. 3019, hence, the need to withdraw the
Information without prejudice to an investigation of the matter by the Special
Prosecutor in order to determine whether respondents Morales and Jimenez, and
other municipal officials, including petitioner, may be criminally liable for violation of
another or other provisions of R.A. 3019.
What is worrisome is that the Assistant Municipal Treasurer gave due course and
paid the balance of petitioner's claims even while the State Auditors were conducting
their special audit.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed
Resolutions of the Sandiganbayan are AFFIRMED. Costs against the petitioner.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.

granted the Motion to Quash the Informations and ordered the dismissal of the two
criminal cases.The second Order dated July 6, 1998, denied the Motion for
Reconsideration.
The Facts

Culled from the records and the pleadings of the parties are the following
undisputed facts.
An Information[3] for slight physical injuries, docketed as Criminal Case No.
23365, was filed against Respondent Dindo Vivar on February 7, 1997. The case
stemmed from the alleged mauling of Petitioner Gian Paulo Villaflor by respondent
around 1:00 a.m. on January 27, 1997 outside the Fat Tuesday Bar at the Ayala
Alabang Town Center, Muntinlupa City. After the severe beating he took from
respondent, petitioner decided to leave the premises together with a friend who was
in the restroom when the mauling incident took place. On his way out, petitioner
again met respondent who told him, Sa susunod gagamitin ko na itong baril
ko[4] (Next time, I will use my gun on you).
When the injuries sustained by petitioner turned out to be more serious than
they had appeared at first, an Information [5] for serious physical injuries, docketed as
Criminal Case No. 23787, was filed against respondent. [6] The earlier charge of slight
physical injuries was withdrawn.
THIRD DIVISION
[G.R. No. 134744. January 16, 2001]
GIAN PAULO VILLAFLOR, petitioner, vs. DINDO VIVAR y GOZON, respondent.
DECISION
PANGANIBAN, J.:
The absence of a preliminary investigation does not impair the validity of an
information or render it defective. Neither does it affect the jurisdiction of the court or
constitute a ground for quashing the information. Instead of dismissing the
information, the court should hold the proceedings in abeyance and order the public
prosecutor to conduct a preliminary investigation.
The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking
to set aside the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City
(Branch 276) in Civil Case No. 97-134. [1] Dated January 20, 1998,[2] the first Order

At the same time, another Information [7] for grave threats, docketed as Criminal
Case No. 23728,[8] was filed against respondent on March 17, 1997.
On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal Case
No. 23787 (for serious physical injuries). [9] Instead of filing a counter-affidavit as
required by the trial court, he filed on April 21, 1997, a Motion to Quash the
Information in Criminal Case No. 23728 (for grave threats). He contended that the
threat, having been made in connection with the charge of serious physical injuries,
should have been absorbed by the latter. Thus, he concluded, Criminal Case No.
23728 should be dismissed, as the trial court did not acquire jurisdiction over it. [10]
In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan
Trial Court (MTC) denied the Motion to Quash, as follows:
For consideration is a motion to quash filed by accused counsel. Considering that
jurisdiction is conferred by law and the case filed is grave threats which is within the
jurisdiction of this Court and considering further that a motion to quash is a prohibited
[pleading] under the rule on summary procedure, the motion to quash filed by
accused counsel is DENIED.

WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED and
let the arraignment of the accused be set on June 25, 1997 at 2:00 oclock in the
afternoon.[11]
The Motion for Reconsideration filed by respondent was denied by the MTC on
June 17, 1997.[12] Thus, he was duly arraigned in Criminal Case No. 23728 (for grave
threats), and he pleaded not guilty.

The Issues

Petitioner submits the following issues for our consideration:[16]

I

On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of
Muntinlupa City. This was docketed as Civil Case No. 97-134. On January 20, 1998,
after the parties submitted their respective Memoranda, the RTC issued the assailed
Order which reads as follows:
The Judicial Officer appears to have acted with grave abuse of discretion amounting
to lack of jurisdiction in declaring and denying the MOTION TO QUASH as a
prohibitive motion. The same should have been treated and [should have] proceeded
under the regular rules of procedure. The MOTION TO QUASH THE
INFORMATIONS filed without preliminary investigation is therefore granted and these
cases should have been dismissed.
Let this Petition be returned to the Metropolitan Trial Court, Branch 80-Muntinlupa
City for appropriate action.[13]
The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for
Reconsideration, as follows:
Submitted for resolution is the unopposed Motion for Reconsideration filed by Private
Respondent.
This Court agrees with the contention of private respondent that the Motion to Quash
filed by petitioner in the inferior court is a prohibited pleading under Rules on
Summary Procedure so that its denial is tenable. However, it would appear that the
criminal charges were filed without the preliminary investigation having been
conducted by the Prosecutors Office. Although preliminary investigation in cases
triable by inferior courts is not a matter of right, the provision of Sec. 51 par 3(a) of
Republic Act 7926 entitled An Act Converting the Municipality of Muntinlupa Into a
Highly Urbanized City To Be Known as the City of Muntinlupa provides that the city
prosecutor shall conduct preliminary investigations of ALL crimes, even violations of
city ordinances. This Act amended the Rules on Criminal Procedure. Since this
procedure was not taken against accused, the Order dated January 20, 1998 stands.
The Motion for Reconsideration is therefore denied. [14]
Hence, this Petition.[15]

Can the court motu propio order the dismissal of the two (2) criminal cases for
serious physical injuries and grave threats on the ground that the public
prosecutor failed to conduct a preliminary investigation?
II
Should the failure of the public prosecutor to conduct a preliminary investigation
be considered a ground to quash the criminal informations for serious physical
injuries and grave threats filed against the accused-respondent?
III
Should respondents entry of plea in the [grave] threats case and posting of cash
bond in the serious physical injuries case be considered a waiver of his right, if
any, to preliminary investigation?
The Courts Ruling

The Petition is meritorious.

First Issue: Lack of 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.
[17]
A component part of due process in criminal justice, preliminary investigation is a
statutory and substantive right accorded to the accused before trial. To deny their
claim to a preliminary investigation would be to deprive them of the full measure of
their right to due process.[18]
However, the absence of a preliminary investigation does not impair the validity
of the information or otherwise render it defective. [19] Neither does it affect the
jurisdiction of the court or constitute a ground for quashing the information. [20] The trial
court, instead of dismissing the information, should hold in abeyance the proceedings
and order the public prosecutor to conduct a preliminary investigation. [21]

Hence, the RTC in this case erred when it dismissed the two criminal cases for
serious physical injuries (Criminal Case No. 23787) and grave threats (Criminal Case
No. 23728) on the ground that the public prosecutor had failed to conduct a
preliminary investigation.
Furthermore, we do not agree that a preliminary investigation was not
conducted. In fact, a preliminary investigation for slight physical injuries was made by
the assistant city prosecutor of Muntinlupa City. The said Information was, however,
amended when petitioners injuries turned out to be more serious and did not heal
within the period specified in the Revised Penal Code.
We believe that a new preliminary investigation cannot be demanded by
respondent. This is because the change made by the public prosecutor was only a
formal amendment.[22]
The filing of the Amended Information, without a new preliminary investigation,
did not violate the right of respondent to be protected from a hasty, malicious and
oppressive prosecution; an open and public accusation of a crime; or from the
trouble, the expenses and the anxiety of a public trial. The Amended Information
could not have come as a surprise to him for the simple and obvious reason that it
charged essentially the same offense as that under the original
Information. Moreover, if the original charge was related to the amended one, such
that an inquiry would elicit substantially the same facts, then a new preliminary
investigation was not necessary.[23]

Nowhere in the above-mentioned section is there any mention of a lack of a

preliminary investigation as a ground for a motion to quash. Moreover, such motion is
a prohibited pleading under Section 19 of the Revised Rules on Summary
Procedure. In the present case, the RTC therefore erred in granting herein
respondents Motion to Quash
Furthermore, we stress that the failure of the accused to assert any ground for a
motion to quash before arraignment, either because he had not filed the motion or
had failed to allege the grounds therefor, shall be deemed a waiver of such grounds.
[26]
In this case, he waived his right to file such motion when he pleaded not guilty to
the charge of grave threats.
In view of the foregoing, we find no more need to resolve the other points raised
by petitioner.
WHEREFORE, the Petition is GRANTED, and the assailed Orders of the
Regional Trail Court of Muntinlupa City are REVERSED. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

Second Issue: Motion to Quash

As previously stated, the absence of a preliminary investigation does not impair

the validity of the information or otherwise render it defective. Neither does it affect
the jurisdiction of the court over the case or constitute a ground for quashing the
information.[24]
Section 3, Rule 117 of the Revised Rules of Criminal Procedure, provides the
grounds on which an accused can move to quash the complaint or
information. These are: (a) the facts charged do not constitute an offense; (b) the
court trying the case has no jurisdiction over the offense charged (c) the court trying
the case has no jurisdiction over the person of the accused; (d) the officer who filed
the information had no authority to do so; (e) the information does not conform
substantially to the prescribed form; (f) more than one offense is charged, except in
those cases in which existing laws prescribe a single punishment for various
offenses; (g) the criminal action or liability has been extinguished; (h) the information
contains averments which, if true, would constitute a legal excuse or justification; and
(i) the accused has been previously convicted or is in jeopardy of being convicted or
acquitted of the offense charged.[25]

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 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:

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
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

(1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or

equated with the broader jurisdiction of the Office of the Ombudsman;

xxx

(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 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.

(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.

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

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).

(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.
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 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 governmentowned 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.
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.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Panganiban, Buena,
Gonzaga-Reyes, Ynares-Santiago, and Sandoval-Gutierrez, JJ., concur.
Kapunan, J., I concur in the result.
Quisumbing, J., on leave.
Pardo, J., I dissent. See attached.
De Leon, Jr., J., I join the dissenting opinion of Justice B. P. Pardo.
FIRST DIVISION
[G.R. No. 143802. November 16, 2001]
REYNOLAN T. SALES, petitioner,
OMBUDSMAN, PEOPLE OF
BENEMERITO, respondents.

vs. SANDIGANBAYAN (4th Division),

THE PHILIPPINES and THELMA

DECISION
YNARES-SANTIAGO, J.:
This Court is tasked to resolve the issue of whether or not the proper procedure
was followed and whether petitioners constitutional rights were safeguarded during
the preliminary investigation conducted before the filing of an Information for Murder
against him and the issuance of a warrant for his arrest by respondent
Sandiganbayan.Petitioner asserts that the Information was hastily filed and the
warrant for his arrest was improper because of an incomplete preliminary
investigation. Respondents say otherwise.
The pertinent factual antecedents are matters of record or are otherwise
uncontroverted.

On August 2, 1999, petitioner, the incumbent town mayor of Pagudpud, Ilocos

Norte, fatally shot the former mayor and his political rival, Atty. Rafael Benemerito, in
an alleged shootout in Barangay Caparispisan of said municipality after a heated
altercation between them. After the shooting incident, petitioner surrendered and
placed himself under the custody of the municipal police then asked that he be
brought to the Provincial PNP Headquarters in Laoag City.
The next day, August 3, 1999, Police Chief Inspector Crispin Agno and private
respondent Thelma Benemerito, wife of the victim, filed a criminal complaint for
Murder[1]against petitioner at the Municipal Circuit Trial Court of Bangui, Ilocos Norte,
Branch 127, presided by Judge Melvin U. Calvan.
Judge Calvan then conducted a preliminary examination of the witnesses, in
accordance with Section 6 (b), Rule 112 of the Rules on Criminal Procedure, found
the existence of probable cause, and thereafter issued an order dated August 3, 1999
for the issuance of a warrant for the arrest of petitioner with no bail recommended.
[2]
By virtue of the warrant of arrest, petitioner was transferred on August 4, 1999 from
the Provincial PNP Headquarters to the Provincial Jail.
On August 5, 1999, Judge Calvan, after conducting a preliminary investigation in
accordance with Sec. 6 (b) of Rule 112 of the Rules on Criminal Procedure, issued a
resolution forwarding the records of the case to the Office of the Provincial Prosecutor
of Ilocos Norte for appropriate action.[3] In addition to the records transmitted by
Judge Calvan, there was also submitted to the Provincial Prosecutor of Ilocos Norte
an NBI Parallel Investigation Report dated August 13, 1999, pursuant to the request
for Investigative Assistance made by Dra. Thelma Lasmarias Benemerito, wife of the
victim,[4] with several annexed affidavits, sworn statements and documents.
Subsequently, on August 19, 1999, petitioner received a subpoena dated August
18, 1999 from the Provincial Prosecutor of Ilocos Norte directing him to file his
counter-affidavit and the affidavits of his witnesses as well as other supporting
documents within ten (10) days from receipt thereof. [5] This petitioner did the following
day, August 20, 1999.
While the foregoing proceedings were ongoing, petitioner filed a petition
for habeas corpus with the Court of Appeals docketed as CA-G.R. SP No 54416,
alleging that: 1.] the order and warrant of arrest for which petitioner was detained is
null and void for being issued by respondent judge who was disqualified by law from
acting on the case by reason of his affinity to private respondent Thelma Benemerito;
and 2.] the preliminary examination by respondent judge was so illegally and
irregularly conducted as to oust the said judge of jurisdiction over the case.
In a Decision dated November 18, 1999, [6] the appellate court granted the
petition for habeas corpus and ordered the release of petitioner from detention

subject to the outcome of the proper preliminary investigation. In granting the petition,
the Court of Appeals reasoned, inter alia, that:
I
It is uncontroverted that respondent Judge is a relative within the third civil degree of
affinity of private respondent Thelma Benemerito. Respondent judge is married to
Susana Benemerito-Calvan, whose father is a brother of the victim.
Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in a case in
which he is related to either party within the sixth degree of consanguinity or
affinity. This disqualification is mandatory, unlike an inhibition which is discretionary. It
extends to all proceedings, not just to the trial as erroneously contended by
respondent judge. Even Canon 3.12 of the Code of Judicial Conduct mandates that a
judge shall take no part in a proceeding where the judges impartiality might be
reasonably questioned, as when he is related by consanguinity or affinity to a party
litigant within the sixth degree. Due process likewise requires hearing before an
impartial and disinterested tribunal so that no judge shall preside in a case in which
he is not wholly free, disinterested, impartial and independent. [7]
xxxxxxxxx
II
The preliminary examination conducted by respondent Judge does not accord with
the prevailing rules. He did it under the old rules, where the preliminary investigation
by the municipal judge has two stages: (1) the preliminary examination stage during
which the investigating judge determines whether there is reasonable ground to
believe that an offense has been committed and the accused is probably guilty
thereof, so that a warrant of arrest may be issued and the accused held for trial; and
(2) the preliminary investigation proper where the complaint or information is read to
the accused after his arrest and he is informed of the substance of the evidence
adduced against him, after which he is allowed to present evidence in his favor if he
so desires. Presidential Decree 911 (further amending Sec. 1, R.A. 5180, as
amended by P.D. 77) upon which the present rule is based, removed the preliminary
examination stage and integrated it into the preliminary investigation proper. Now the
proceedings consists of only one stage.[8]
Respondent Judge did not conduct the requisite investigation prior to issuance of the
arrest warrant. The Rules require an examination in writing under oath in the form of
searching questions and answers. [9] The statements of witnesses were not sworn
before him but before the Provincial Prosecutor. The purported transcript of
stenographic notes do not bear the signature of the stenographer.

Moreover, he did not complete the preliminary investigation. He claimed to have

examined only the witnesses of the complainant. He issued a Resolution and
forwarded the records to the Provincial Prosecutor without giving the accused
(petitioner) an opportunity to submit counter-affidavits and supporting documents. [10]
While it is true that the usual remedy to an irregular preliminary investigation is to ask
for a new preliminary investigation, such normal remedy would not be adequate to
free petitioner from the warrant of arrest which stemmed from that irregular
investigation. The Provincial Prosecution has no power to recall the warrant of arrest.
Meanwhile, after receipt of the records of the case from Judge Calvan as well as
petitioner-accuseds counter-affidavits, the Ilocos Norte Provincial Prosecutor, instead
of conducting a preliminary investigation of his own, merely forwarded the said
records to the Ombudsman for the latter to conduct the same.
It appears that petitioner was only apprised of the foregoing inaction on the case
by the Provincial Prosecutor when he received on September 10, 1999 a
Memorandum dated September 2, 1999,[11] filed by private respondents counsel,
requesting that the case, I.S. No. 99-548, be remanded to Office of the Ombudsman
for preliminary investigation and, thereafter, for the prosecution of the appropriate
indictments before the Sandiganbayan.[12]
On January 27, 2000, petitioner received a notice from the Ombudsman
directing him to file his counter-affidavits. Considering that petitioner had already
submitted his counter-affidavits to the Ilocos Norte Provincial Prosecutor as far back
as August 20, 1999, he found the directive superfluous and did not act on it.
On May 25, 2000, Graft Investigation Officer II Cynthia V. Vivar issued a
Resolution[13] recommending the filing of an Information for Murder against petitioner
and four others[14] before the Sandiganbayan. The recommendation was approved by
the Ombudsman on June 16, 2000.[15]
It appears that petitioner belatedly received a copy of the foregoing Resolution
of the graft investigation officer only on June 21, 2000, and because he was thus
effectively prevented from seeking a reconsideration thereof, he then filed a Motion
To Defer Issuance Of Warrant Of Arrest pending determination of probable cause
dated June 22, 2000[16]. The motion was denied by Sandiganbayans Fourth Division
in the challenged Resolution of July 13, 2000. [17]
Owing to the urgency of the matter, petitioner opted to directly resort to this
recourse eschewing the filing of a motion for reconsideration on the grounds that
(A) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE
PROCESS WHEN IT RULED HIM TO HAVE NO STANDING TO OBJECT TO THE

ISSUANCE OF A WARRANT FOR HIS ARREST SINCE HE HAS NOT SUBMITTED

TO ITS CUSTODY.
(B) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE
PROCESS WHEN IT ISSUED A WARRANT FOR HIS ARREST ON THE BASIS OF
AN INCOMPLETE PRELIMINARY INVESTIGATION.
(C) THE OMBUDSMAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS
WHEN IT HURRIEDLY FILED AN INFORMATION FOR MURDER AGAINST HIM
WITHOUT SCRUTINIZING, OR EVEN ONLY READING, ALL THE EVIDENCE
BEFORE HIM AND WITHOUT CALLING FOR PRODUCTION OF THE CRITICAL
PHYSICAL EVIDENCE.
(D) NOT ONLY DID THE SANDIGANBAYAN GRAVELY ABUSE ITS DISCRETION
WHEN IT RELIED ON AN INCOMPLETE PRELIMINARY INVESTIGATION
CONDUCTED BY THE OMBUDSMAN BUT IT FURTHER AGGRAVATED THIS
GRAVE ABUSE WHEN IT OMITTED ALTOGETHER TO CONDUCT ITS OWN
INDEPENDENT REVIEW OF THE EVIDENCE OF PROBABLE CAUSE.
The primordial question to be resolved in this controversy is whether or not the
Ombudsman followed the proper procedure in conducting a preliminary investigation
and, corollarily, whether or not petitioner was afforded an opportunity to be heard and
to submit controverting evidence.
As this Court pointed out in Duterte v. Sandiganbayan,[18] [t]he purpose of a
preliminary investigation or a previous inquiry of some kind, before an accused
person is placed on trial, is to secure the innocent against hasty, malicious and
oppressive prosecution and to protect him from an open and public accusation of a
crime, from the trouble, expenses and anxiety of a public trial. [19] It is also intended to
protect the state from having to conduct useless and expensive trials. [20] While the
right is statutory rather than constitutional in its fundament, it is a component part of
due process in criminal justice. The right to have a preliminary investigation
conducted before being bound over to 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. To deny the accuseds claim to a preliminary investigation would
be to deprive him of the full measure of his right to due process. [21]
Although a preliminary investigation is not a trial and is not intended to usurp the
function of the trial court, it is not a casual affair. The officer conducting the same
investigates or inquires into the facts concerning the commission of the crime with the
end in view of determining whether or not an information may be prepared against
the accused. Indeed, preliminary investigation is in effect a realistic judicial appraisal
of the merits of the case. Sufficient proof of the guilt of the accused must be adduced
so that when the case is tried, the trial court may not be bound as a matter of law to
order an acquittal. A preliminary investigation has been called a judicial inquiry. It is a

judicial proceeding. An act becomes a judicial proceeding when there is an

opportunity to be heard and for the production of and weighing of evidence, and a
decision is rendered thereon.[22]
The authority of a prosecutor or investigating officer duly empowered to preside
or to conduct a preliminary investigation is no less than a municipal judge or even a
regional trial court judge. While the investigating officer, strictly speaking, is not a
judge by the nature of his functions, he is and must be considered to be a quasijudicial officer because a preliminary investigation is considered a judicial proceeding.
[23]
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.[24]
Indeed, since a preliminary investigation is designed to screen cases for trial,
only evidence may be considered. While even raw information may justify the
initiation of an investigation, the stage of preliminary investigation can be held only
after sufficient evidence has been gathered and evaluated warranting the eventual
prosecution of the case in court.[25] In other words
. . . it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of
the guarantee of freedom and fair play which are the birthrights of all who live in our
country. It is therefore 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 reason.[26]
Measured vis--vis the foregoing legal yardsticks, we hold that the proper
procedure in the conduct of the preliminary investigation was not followed, for the
following reasons:
First, the records show that the supposed preliminary investigation was
conducted in installments by at least three (3) different investigating officers, none of
whom completed the preliminary investigation. There was not one continuous
proceeding but rather a case of passing the buck, so to speak, the last one being the
Ombudsman hurriedly throwing the buck to the Sandiganbayan. This practice of
passing the buck by the Ombudsman to the Sandiganbayan was met with
disapproval in Venus v. Desierto[27] where this Court speaking through then
Associate Justice, now Chief Justice Hilario G. Davide, Jr., trenchantly said that:

Upon a subsequent re-assessment of the evidence as a consequence of petitioners

motion for reconsideration, another Special Prosecution Officer xxx found that
petitioner had not violated Sec. 3 (e) of R.A. No. 3019, as amended, he thus,
recommended dismissal of the case for want of probable cause and the filing of the
corresponding manifestation to inform the Sandiganbayan of the result of the motion
for reconsideration. In this instance the Special Prosecutor himself concurred with the
finding. However, the Ombudsman disapproved the recommendation as he found
that probable cause existed but opted to allow the court to find absence of bad faith.
This marginal note of the Ombudsman simply meant that he believed that petitioner
was in bad faith. However, good faith is always presumed and the Chapter on Human
Relations of the Civil Code directs every person, inter alia, to observe good faith
which, according to the Commission, springs from the foundation of good
conscience.Therefore, he who charges another with bad faith must prove it. In this
sense, the Ombudsman should have first determined the facts indicative of bad
faith. On the basis alone of the finding and conclusion of Special Prosecution Officer
III Victor Pascual, with which the Special Prosecutor concurred, there was no
showing of bad faith on the part of petitioner. It was, therefore, error for the
Ombudsman to pass the buck, so to speak, to the Sandiganbayan to find
absence of bad faith.
x x x x x x x x x.[28]
Second, the charge against herein petitioner is Murder, a non-bailable
offense. The gravity of the offense alone, not to mention the fact that the principal
accused is an incumbent mayor whose imprisonment during the pendency of the
case would deprive his constituents of their duly-elected municipal executive, should
have merited a deeper and more thorough preliminary investigation. The
Ombudsman, however, did nothing of the sort and instead swallowed hook, line and
sinker the resolution and recommendation of Graft Investigation Officer II Cynthia V.
Vivar, among them the finding that, aside from the averment of respondent that the
victim fired at him and he was only forced to fire back, no other evidence was
adduced to indicate that such was what happened.[29]
There are, however, four affidavits on record [30] which state in categorical terms
that it was the victim who first fired at petitioner with his Armalite rifle and that
petitioner merely returned fire. An Armalite rifle and empty shells were recovered from
the scene of the incident by the PNP and impounded by it. According to the Physical
Science Report No. C-147A-99,[31] some of the shells correspond to the Armalite rifle,
thereby indicating that the firearm was fired. The Ombudsman, however, neither
called for the production of the firearm and the empty shells, nor did he ask for the
production of the ballistic and laboratory examinations of the bloodstains on the
Armalite rifle despite the statement by the Provincial Fiscal of Ilocos Norte that these
pieces of evidence were all available.[32]

There are, furthermore, other dubious circumstances which should have

prompted the Ombudsman to take a second, deeper look instead of adopting in
toto the recommendation of GIO II Vivar. Among these is the matter of the two (2)
different autopsies on the cadaver of the victim, one indicating that the victim
sustained two (2) wounds only and the other showing that the victim had three (3)
wounds. The significance of this fact was not appreciated by the Ombudsman who
likewise glossed over the adamant refusal of the private respondent to subject the
cadaver of the victim to a paraffin test, despite the claims of the accuseds witnesses
that the victim fired the Armalite rifle.
Given the foregoing circumstances, the Ombudsman for all practical purposes
did an even worse job than Judge Calvan for, by adopting in its entirety the findings of
the investigating officer despite its obvious flaws, he actually did nothing at all and, in
effect, threw everything to the Sandiganbayan for evaluation. This practice, as earlier
stated, was not condoned in Venus v. Desierto, supra. Nor will it be in this
case. 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 haled 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.[33]
Third, a person under preliminary investigation by the Ombudsman is entitled to
file a motion for reconsideration of the adverse resolution. This right is provided for in
the very Rules of Procedure of the Ombudsman, [34] which states:
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 fifteen
(15) days from notice thereof with the Office of the Ombudsman or the
Deputy Ombudsman as the case may be.
b) No motion for reconsideration or reinvestigation shall be
entertained after the information shall have been filed in court, except
upon order of the court wherein the case was filed.(Emphasis supplied).
The filing of a motion for reconsideration is an integral part of the preliminary
investigation proper. There is no dispute that the Information was filed without first
affording petitioner-accused his right to file a motion for reconsideration. The denial
thereof is tantamount to a denial of the right itself to a preliminary investigation. This
fact alone already renders preliminary investigation conducted in this
case incomplete. The inevitable conclusion is that the petitioner was not only
effectively denied the opportunity to file a motion for reconsideration of the

Ombudsmans final resolution but also deprived of his right to a full preliminary
investigation preparatory to the filing of the information against him. [35]
As stated earlier, it appears that petitioner belatedly received a copy of the May
25, 2000 Resolution of Graft Investigation Officer II Cynthia V. Vivar only on June 21,
2000. Because he was thus effectively precluded from seeking a reconsideration
thereof, he then filed a Motion To Defer Issuance Of Warrant Of Arrest pending
determination of probable cause.[36] The Sandiganbayan denied the motion in its
challenged Resolution of July 13, 2000, [37] and forthwith ordered the issuance of the
warrant of arrest against petitioner. Suffice it to state in this regard that such a
deprivation of the right to a full preliminary investigation preparatory to the filing of the
information warrants the remand of the case to the Ombudsman for the completion
thereof.[38]
Fourth, it was patent error for the Sandiganbayan to have relied purely on the
Ombudsmans certification of probable cause given the prevailing facts of this case
much more so in the face of the latters flawed report and one-sided factual
findings. In the order of procedure for criminal cases, the task of determining
probable cause for purposes of issuing a warrant of arrest is a responsibility which is
exclusively reserved by the Constitution to judges. [39] People v. Inting[40] clearly
delineated the features of this constitutional mandate, viz: 1.] The determination of
probable cause is a function of the judge; it is not for the provincial fiscal or
prosecutor to ascertain. Only the judge and the judge alone makes this
determination; 2.] The preliminary inquiry made by a prosecutor does not bind the
judge. It merely assists him in making the determination of probable cause. 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 in his determination of probable cause; and 3.] 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
be released. Even if the two inquiries be made in one and the same proceeding,
there should be no confusion about their objectives. The determination of probable
cause for purposes of issuing 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.
Stated differently, while the task of conducting a preliminary investigation is
assigned either to an inferior court magistrate or to a prosecutor,[41] only a judge may
issue a warrant of arrest. When the preliminary investigation is conducted by an
investigating prosecutor, in this case the Ombudsman, [42] the determination of
probable cause by the investigating prosecutor cannot serve as the sole basis for the
issuance by the court of a warrant of arrest. This is because the court with whom the

information is filed is tasked to make its own independent determination of probable

cause for the issuance of the warrant of arrest. Indeed

contradictions in the testimonies of the complainants witnesses as well as the

improbabilities in the prosecution evidence.[46] Certainly

. . . the Judge cannot ignore the clear words of the 1987 Constitution which
requires . . . probable cause to be personally determined by the judge . . . not by any
other officer or person.

. . . probable cause may not be established simply by showing that a trial judge
subjectively believes that he has good grounds for his action. Good faith is not
enough. If subjective good faith alone were the test, the constitutional protection
would be demeaned and the people would be secure in their persons, houses,
papers and effects only in the fallible discretion of the judge. [47] On the contrary, the
probable cause test is an objective one, for in order that there be probable cause the
facts and circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has just been
committed.[48] This, as we said is the standard. xxx

xxxxxxxxx
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 brief or as detailed as the circumstances of each case may
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 so require.
xxxxxxxxx
We reiterate that in making the required personal determination, a Judge is not
precluded from relying on the evidence earlier gathered by responsible officers. The
extent of the reliance depends on the circumstances of each case and is subject to
the Judges sound discretion. However, the Judge abuses that discretion when having
no evidence before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on
the Prosecutors certification and issued the questioned Order dated July 5, 1990
without having before him any other basis for his personal determination of the
existence of probable cause.[43]
All told, the Court cannot accept the Sandiganbayans assertions of having found
probable cause on its own, considering the Ombudsmans defective report and
findings, which merely relied on the testimonies of the witnesses for the prosecution
and disregarded the evidence for the defense. [44] In Roberts v. CA,[45] the trial judge
was chastised by the Court for issuing a warrant of arrest without even reviewing the
records of the preliminary investigation which were then still with the Department of
Justice. In the case at bar, it cannot be said that the Sandiganbayan reviewed all the
records forwarded to it by the Ombudsman considering the fact that the preliminary
investigation which was incomplete escaped its notice.
What the Sandiganbayan should have done, faced with such a slew of
conflicting evidence from the contending parties, was to take careful note of the

xxxxxxxxx
The sovereign power has the inherent right to protect itself and its people from the
vicious acts which endanger the proper administration of justice; hence the State has
every right to prosecute and punish violators of the law. This is essential for its selfpreservation, nay its very existence. But this does not confer a license for pointless
assaults on its citizens. The right of the State to prosecute is not a carte blanche for
government agents to defy and disregard the rights of its citizens under the
Constitution. Confinement, regardless of duration, is too a high a price to pay for
reckless and impulsive prosecution. x x x
The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the
preservation of our natural rights which include personal liberty and security against
invasion by the government or any of its branches or instrumentalities. Certainly, in
the hierarchy of rights, the Bill of Rights takes precedence over the right of the State
to prosecute, and when weighed against each other, the scales of justice tilt towards
the former. Thus, relief may be availed of to stop the purported enforcement of
criminal law where it is necessary to provide for an orderly administration of justice, to
prevent the use of the strong arm of the law in an oppressive and vindictive manner,
and to afford adequate protection to constitutional rights.[49]
In this case, the undue haste in filing of the information against petitioner cannot
be ignored. From the gathering of evidence until the termination of the preliminary
investigation, it appears that the state prosecutors were overly-eager to file the case
and to secure a warrant of arrest of petitioner without bail and his consequent
detention.There can be no gainsaying the fact that the task of ridding society of
criminals and misfits and sending them to jail in the hope that they will in the future
reform and be productive members of the community rests both on the judiciousness
of judges and the prudence of the prosecutors. There is however, a standard in the
determination of the existence of probable cause. The determination has not
measured up to that standard this case.

WHEREFORE, in view of all the foregoing, judgment is hereby rendered:

1.] SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000
and the Resolution of Graft Investigation Officer II Cynthia V. Vivar dated May 25,
2000 in Criminal Case No. 26115;
2.] Ordering the Sandiganbayan to QUASH the warrant of arrest it issued
against petitioner;
3.] REMANDING the case to the Ombudsman for completion of the preliminary
investigation.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

FIRST DIVISION
[G.R. No. 154920. August 15, 2003]
RODNEY HEGERTY, petitioner, vs. THE HON. COURT OF APPEALS and ALLAN
NASH, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition seeks to annul and set aside the decision of the Court of Appeals in
CA-G.R. SP No. 66680[1] which reversed the resolution[2] of the Office of the City
Prosecutor of Manila dismissing the complaint for estafa filed against petitioner
Rodney Hegerty, as well as the resolution of the Secretary of Justice dismissing
respondent Allan Nashs appeal and denying his motion for reconsideration for having
been filed out of time.
Respondent Allan Nash alleged that petitioner Rodney Hegerty, together with
the deceased Don Judevine and James Studenski, invited him to invest in a foreign
exchange scheme with a guaranteed return of 10.45% per annum on the money
invested. From July 1992 to November 28, 1997, Nash invested a total of
US$236,353.34.
Sometime in December 1997, Hegerty informed Nash that all his investments
had been lost after he lent a portion of the investment to Swagman Hotels and Travel,
Inc., of which he was a stockholder. Initially, Hegerty offered to return to Nash half of
his total investment, but later on withdrew the offer.

After his demands were ignored, Nash filed a complaint-affidavit against Hegerty
before the City Prosecutor of Manila for estafa under Article 315 (1) (b) of the Revised
Penal Code.

II. MAY THE RESPONDENT COURT OF APPEALS ACTING WITHOUT

JURISDICTION ORDER THE PROSECUTION OF A CRIMINAL
CASE?[5]

For his part, Hegerty denied making any invitation to Nash to invest his money
in any foreign exchange scheme. Neither did he divert any portion of such investment
to the Swagman Group of Companies. He, however, admitted his acquaintance with
Judevine and Studenski but denied that they were his business partners. He likewise
disclaimed any knowledge of or participation in any of the receipts and cash vouchers
presented by Nash supposedly as proofs of his investments.

Hegerty contends that since Nashs appeal with the DOJ and his motion for
reconsideration were both filed out of time, the prosecutors resolution had become
final and executory. Consequently, the DOJ and the Court of Appeals never acquired
jurisdiction over the case. Corollarily, the Court of Appeals does not have the authority
to order the filing of a case in the absence of grave abuse of discretion on the part of
the prosecutor.

The City Prosecutor dismissed the complaint for estafa against Hegerty for
insufficiency of evidence. Upon receipt of a copy of the said resolution on June 16,
1999, counsel of Nash filed a motion for reconsideration. On May 8, 2000, Nash
himself received a copy of the resolution denying the motion for reconsideration.

We agree. The rule is settled that our duty in an appropriate case is confined to
determining 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. Thus, although it is entirely possible that the investigating fiscal may
erroneously exercise the discretion lodged in him by law, this does not render his 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. [6]

On May 19, 2000, Nash filed an appeal with the Department of Justice (DOJ),
however, the same was dismissed [3] for having been filed out of time. He filed a
motion for reconsideration, which was denied again for having been filed beyond the
reglementary period of ten (10) days.
Undaunted, Nash filed with the Court of Appeals a petition
for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil Procedure,
contending that the DOJ acted in grave abuse of discretion amounting to lack of or in
excess of jurisdiction when it dismissed his appeal and denied his motion for
reconsideration.
On June 28, 2002, the Court of Appeals rendered the assailed decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the PETITION is GRANTED. The undated
resolution and 22 August 2001 resolution are REVERSED and SET ASIDE. The
public respondent is directed to prosecute respondent Hegerty for the crime of estafa
under Article 315 (1) (b) of the Revised Penal Code.
SO ORDERED.[4]
Hegerty is now before us on this petition for review, raising the following issues:
I. DOES THE RESPONDENT COURT OF APPEALS HAVE
JURISDICTION OVER A CASE WHICH STARTED AT THE OFFICE OF
THE PROSECUTOR OF MANILA THEN APPEALED TO THE
DEPARTMENT OF JUSTICE BUT WHICH APPEAL WAS FILED WAY
OUT OF TIME?

The pivotal question, therefore, in this case is: whether the City Prosecutor
acted with grave abuse of discretion in dismissing the criminal complaint for estafa
against Hegerty.
In D.M. Consunji, Inc. v. Esguerra,[7] we defined grave abuse of discretion in this
wise:
By grave abuse of discretion is meant, such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion 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.
The City Prosecutor had the duty to determine whether there was a prima
facie case for estafa based on sufficient evidence that would warrant the filing of an
information. The elements of estafa through misappropriation as defined and
penalized under Article 315 (1) (b) are:
(1) That money, goods, or other personal property be received by the offender in trust
or on commission, or for administration, or under any other obligation involving the
duty to make delivery of, or to return, the same;
(2) That there be misappropriation or conversion of such money or property by the
offender, or denial on his part of such receipt;

(3) That such misappropriation or conversion or denial is to the prejudice of another;

and
(4) That there is a demand made by the offended party to the offender.[8]
The City Prosecutor dismissed the complaint for estafa based on the following
findings:
Recouping everything that has been maintained and asserted by the parties, there is
really reason to believe that the complainant had in fact made some investments with
the late DON JUDEVINE who acknowledged receipts thereof and bound himself
thereby alone. There is, however, an utter and absolute absence of a showing that
the respondent partook of the said investments nor had any business dealing with
either the late DON JUDEVINE or the complainant. Complainant also tried in vain to
show some form of a partnership between the respondent and the two deceased
individuals but the former failed to adduce any tangible evidence to support the same
except his general declarations which remain bare as they were. [9]
A public prosecutor, by the nature of his office, is under no compulsion to file a
criminal information where no clear legal justification has been shown, and no
sufficient evidence of guilt nor prima facie case has been presented by the petitioner.
[10]

We need only to stress that the determination of probable cause during a

preliminary investigation or reinvestigation is recognized as an executive function
exclusively of the prosecutor. An investigating prosecutor is under no obligation to file
a criminal action where he is not convinced that he has the quantum of evidence at
hand to support the averments. Prosecuting officers have equally the duty not to
prosecute when after investigation or reinvestigation they are convinced that the
evidence adduced was not sufficient to establish a prima facie case. Thus, the
determination of the persons to be prosecuted rests primarily with the prosecutor who
is vested with discretion in the discharge of this function.[11]
In Quiso v. Sandiganbayan,[12] we pointed out that:
x x x [A] fiscal by the nature of his office, is under no compulsion to file a particular
criminal information where he is not convinced that he has evidence to support the
allegations thereof. Although this power and prerogative x x x is not absolute and
subject to judicial review, it would be embarrassing for the prosecuting attorney to be
compelled to prosecute a case when he is in no position to do so, because in his
opinion he does not have the necessary evidence to secure a conviction, or he is not
convinced of the merits of the case.
The remedy of mandamus does not lie to compel the City Prosecutor to file an
Information against petitioner. There being no showing of grave abuse of discretion

which will warrant the reversal of the dismissal of the complaint against petitioner,
there is also no ground to issue a writ of mandamus. [13] In the case at bar, we find no
evidence to prove that the City Prosecutor abused, much less gravely abused, his
discretion when he dismissed the complaint for estafa filed against Hegerty.
Moreover, the appeal filed by respondent with the Department of Justice was out
of time. Section 2 of DOJ Order No. 223 dated June 30, 1993, which was then in
force, provides:
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.
In the case at bar, respondents counsel received a copy of the resolution of the
City Prosecutor dismissing the complaint on June 16, 1999. The tenth day, June 26,
fell on a Saturday; thus, the motion for reconsideration was filed on Monday, June 28,
1999. On May 8, 2000, respondent received the resolution denying his motion for
reconsideration. He filed an appeal with the Department of Justice on May 19, 2000.
Under the above-quoted rule, respondents fifteen-day period to appeal was
interrupted by the filing of the motion for reconsideration on the tenth day. The said
period continued to run again when he received the resolution denying his motion for
reconsideration, but only for the remaining period of five days. Therefore, respondent
only had until May 15, 2000 May 13, 2000 was a Saturday within which to appeal. His
appeal filed on May 19, 2000 was clearly out of time.
Respondent Nash, however, argues that the service to him of the resolution of
the City Prosecutor denying his motion for reconsideration was invalid inasmuch as
he was represented by counsel. There is no generally accepted practice in the
service of orders, resolutions, and processes, which allows service upon either the
litigant or his lawyer. While as a rule, notice or service made upon a party who is
represented by counsel is a nullity, this admits of exceptions, as when the court or
tribunal orders service upon the party or when the technical defect is waived. [14]
The above-quoted DOJ Rule expressly provides that service of resolutions may
be made to the party or his counsel. In this connection, we had occasion to rule:[15]
A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary
investigations, service can be made upon the party himself or through his counsel. It
must be assumed that when the Justice Department crafted the said section, it was
done with knowledge of the pertinent rule in the Rules of Court and of jurisprudence
interpreting it.The DOJ could have just adopted the rule on service provided for in the
Rules of Court, but did not. Instead, it opted to word Section 2 of DOJ Order No. 223

in such a way as to leave no doubt that in preliminary investigations, service of

resolutions of public prosecutors could be made upon either the party or his counsel.
WHEREFORE, in view of the foregoing, the petition is GRANTED. The decision
of the Court of Appeals in CA G.R. SP No. 66680 is REVERSED and SET
ASIDE. The Resolution of the City Prosecutor of Manila, which dismissed the
complaint against petitioner for estafa, and the Resolution of the Department of
Justice which denied respondents appeal, are REINSTATED. No costs.
SO ORDERED.
Davide, Jr., C.J. , (Chairman), Vitug, Carpio and Azcuna, JJ., concur.

capacity as Presiding Judge of the Regional Trial Court of Hilongos, Leyte,

Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and
Officer-in-Charge, ROSULO U. VIVERO, in his capacity as Investigating
Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
Department of Justice, Respondents.
x-----------------------x
G.R. No. 190005
VICENTE
P.
LADLAD, Petitioner,
vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch 32, and the PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 176830

February 11, 2014

SATURNINO
C.
OCAMPO, Petitioner,
vs.
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional
Trial Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in. his capacity as
Approving Prosecutor and Officer-in-Charge, ROSULO U. VIVERO, in his
capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his capacity as
Secretary of the Department of Justice, Respondents.
x-----------------------x
G.R. No. 185587
RANDALL
B.
ECHANIS, Petitioner,
vs.
HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch 32, HON. EPHREM S. ABANDO, in his
capacity as Presiding Judge of the Regional Trial Court of Hilongos, Leyte,
Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and
Officer-in-Charge, ROSULO U. VIVERO, in his capacity as Investigating
Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
Department of Justice, Respondents.
x-----------------------x
G.R. No. 185636
RAFAEL
G.
BAYLOSIS, Petitioner,
vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch 32, HON. EPHREM S. ABANDO, in his

SERENO, CJ.:
On 26 August 2006, a mass grave was discovered by elements of the 43rd Infantry
Brigade of the Philippine Army at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan,
Leyte.1 The mass grave contained skeletal remains of individuals believed to be
victims of "Operation Venereal Disease" (Operation VD) launched by members of the
Communist Party of the Philippines/New Peoples Army/National Democratic Front of
the Philippines (CPP/NPA/NDFP) to purge their ranks of suspected military informers.
While the doctrine of hierarchy of courts normally precludes a direct invocation of this
Courts jurisdiction, we take cognizance of these petitions considering that petitioners
have chosen to take recourse directly before us and that the cases are of significant
national interest.
Petitioners have raised several issues, but most are too insubstantial to require
consideration. Accordingly, in the exercise of sound judicial discretion and economy,
this Court will pass primarily upon the following:
1. Whether petitioners were denied due process during preliminary
investigation and in the issuance of the warrants of arrest.
2. Whether the murder charges against petitioners should be dismissed
under the political offense doctrine.
ANTECEDENT FACTS
These are petitions for certiorari and prohibition 2 seeking the annulment of the orders
and resolutions of public respondents with regard to the indictment and issuance of
warrants of arrest against petitioners for the crime of multiple murder.
Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine
National Police (PNP) Regional Office 8 and Staff Judge Advocate Captain Allan Tiu
(Army Captain Tiu) of the 8th Infantry Division of the Philippine Army sent 12 undated
letters to the Provincial Prosecutor of Leyte through Assistant Provincial Prosecutor
Rosulo U. Vivero (Prosecutor Vivero). 3 The letters requested appropriate legal action
on 12 complaint-affidavits attached therewith accusing 71 named members of the
Communist Party of the Philippines/New Peoples Army/National Democratic Front of

the Philippines (CPP/NPA/NDFP) of murder, including petitioners herein along with

several other unnamed members.
The letters narrated that on 26 August 2006, elements of the 43rd Infantry Brigade of
the Philippine Army discovered a mass grave site of the CPP/NPA/NDFP at Sitio
Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte. 4Recovered from the grave site
were 67 severely deteriorated skeletal remains believed to be victims of Operation
VD.5
The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8
was immediately dispatched to the mass grave site to conduct crime investigation,
and to collect, preserve and analyze the skeletal remains. 6 Also, from 11-17
September 2006, an investigation team composed of intelligence officers, and
medico-legal and DNA experts, conducted forensic crime analysis and collected from
alleged relatives of the victims DNA samples for matching. 7
The Initial Specialist Report 8 dated 18 September 2006 issued by the PNP Crime
Laboratory in Camp Crame, Quezon City, was inconclusive with regard to the
identities of the skeletal remains and even the length of time that they had been
buried. The report recommended the conduct of further tests to confirm the identities
of the remains and the time window of death.9
10

However, in a Special Report dated 2 October 2006, the Case Secretariat of the
Regional and National Inter-Agency Legal Action Group (IALAG) came up with the
names of ten (10) possible victims after comparison and examination based on
testimonies of relatives and witnesses.11
The 12 complaint-affidavits were from relatives of the alleged victims of Operation
VD. All of them swore that their relatives had been abducted or last seen with
members of the CPP/NPA/NDFP and were never seen again.
They also expressed belief that their relatives remains were among those discovered
at the mass grave site.
Also attached to the letters were the affidavits of Zacarias Piedad, 12 Leonardo C.
Tanaid, Floro M. Tanaid, Numeriano Beringuel, Glecerio Roluna and Veronica P.
Tabara.
They narrated
that
they were
former
members
of
the
CPP/NPA/NDFP.13 According to them, Operation VD was ordered in 1985 by the
CPP/NPA/NDFP Central Committee.14 Allegedly, petitioners Saturnino C. Ocampo
(Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G. Baylosis (Baylosis),17 and
Vicente P. Ladlad (Ladlad)18 were then members of the Central Committee.
According to these former members, four sub-groups were formed to implement
Operation VD, namely, (1) the Intel Group responsible for gathering information on
suspected military spies and civilians who would not support the movement; (2) the
Arresting Group charged with their arrests; (3) the Investigation Group which would
subject those arrested to questioning; and (4) the Execution Group or the "cleaners"
of those confirmed to be military spies and civilians who would not support the
movement.19
From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and
executed by members of the CPP/NPA/NDF20 pursuant to Operation VD.21
On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a
subpoena requiring, among others, petitioners to submit their counter-affidavits and

those of their witnesses.22 Petitioner Ocampo submitted his counteraffidavit.23 Petitioners Echanis24 and Baylosis25 did not file counter-affidavits because
they were allegedly not served the copy of the complaint and the attached documents
or evidence. Counsel of petitioner Ladlad made a formal entry of appearance on 8
December 2006 during the preliminary investigation. 26 However, petitioner Ladlad did
not file a counter-affidavit because he was allegedly not served a subpoena. 27
In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended the filing
of an Information for 15 counts of multiple murder against 54 named members of the
CPP/NPA/NDFP, including petitioners herein, for the death of the following: 1) Juanita
Aviola, 2) Concepcion Aragon, 3) Gregorio Eras, 4) Teodoro Recones, Jr., 5)
Restituto Ejoc, 6) Rolando Vasquez, 7) Junior Milyapis, 8) Crispin Dalmacio, 9)
Zacarias Casil, 10) Pablo Daniel, 11) Romeo Tayabas, 12) Domingo Napoles, 13)
Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto Prado. 29
Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid,
Numeriano Beringuel and Glecerio Roluna be dropped as respondents and utilized
as state witnesses, as their testimonies were vital to the success of the
prosecution.30 The Resolution was silent with regard to Veronica Tabara.
The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte,
Branch 18 (RTC Hilongos, Leyte) presided by Judge Ephrem S. Abando (Judge
Abando) on 28 February 2007, and docketed as Criminal Case No. H1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory
Hearing dated 5 March 2007 prior to receiving a copy of the Resolution
recommending the filing of the Information.32
On 6 March 2007, Judge Abando issued an Order finding probable cause "in the
commission by all mentioned accused of the crime charged." 33 He ordered the
issuance of warrants of arrest against them with no recommended bail for their
temporary liberty.34
On 16 March 2007, petitioner Ocampo filed before us this special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court and docketed as G.R.
No. 176830 seeking the annulment of the 6 March 2007 Order of Judge Abando and
the 16 February 2007 Resolution of Prosecutor Vivero. 35 The petition prayed for the
unconditional release of petitioner Ocampo from PNP custody, as well as the
issuance of a temporary restraining order/ writ of preliminary injunction to restrain the
conduct of further proceedings during the pendency of the petition. 36
Petitioner Ocampo argued that a case for rebellion against him and 44 others
(including petitioners Echanis and Baylosis 37 and Ladlad38) docketed as Criminal
Case No. 06-944 was then pending before the RTC Makati, Branch 150 (RTC
Makati).39 Putting forward the political offense doctrine, petitioner Ocampo argues that
common crimes, such as murder in this case, are already absorbed by the crime of
rebellion when committed as a necessary means, in connection with and in
furtherance of rebellion.40
We required41 the Office of the Solicitor General (OSG) to comment on the petition
and the prayer for the issuance of a temporary restraining order/ writ of preliminary
injunction, and set42 the case for oral arguments on 30 March 2007. The OSG filed its
Comment on 27 March 2007.43

The following were the legal issues discussed by the parties during the oral
arguments:
1. Whether the present petition for certiorari and prohibition is the proper
remedy of petitioner Ocampo;
2. Assuming it is the proper remedy, whether he was denied due process
during preliminary investigation and in the issuance of the warrant of arrest;
3. Whether the murder charges against him are already included in the
rebellion charge against him in the RTC.44
Afterwards, the parties were ordered to submit their memoranda within 10 days. 45 On
3 April 2007, the Court ordered the provisional release of petitioner Ocampo under
a P100,000
cash
bond.46
Acting on the observation of the Court during the oral arguments that the single
Information filed before the RTC Hilongos, Leyte was defective for charging 15 counts
of murder, the prosecution filed a Motion to Admit Amended Information and New
Informations on 11 April 2007.47 In an Order dated 27 July 2007, Judge Abando held
in abeyance the resolution thereof and effectively suspended the proceedings during
the pendency of G.R. No. 176830 before this Court.48
While the proceedings were suspended, petitioner Echanis was arrested on 28
January 2008 by virtue of the warrant of arrest issued by Judge Abando on 6 March
2007.49 On 1 February 2008, petitioners Echanis and Baylosis filed a Motion for
Judicial Reinvestigation/ Determination of Probable Cause with Prayer to Dismiss the
Case Outright and Alternative Prayer to Recall/ Suspend Service of Warrant. 50
On 30 April 2008, Judge Abando issued an Order denying the motion. 51 Petitioners
Echanis and Baylosis filed a Motion for Reconsideration 52 dated 30 May 2008, but
before being able to rule thereon, Judge Abando issued an Order dated 12 June
2008 transmitting the records of Criminal Case No. H-1581 to the Office of the Clerk
of Court, RTC Manila. 53 The Order was issued in compliance with the Resolution
dated 23 April 2008 of this Court granting the request of then Secretary of Justice
Raul Gonzales to transfer the venue of the case.
The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by Judge
Thelma Bunyi-Medina (Judge Medina) and re-docketed as Criminal Case No. 08262163.54 Petitioner Echanis was transferred to the PNP Custodial Center in Camp
Crame, Quezon City. On 12 August 2008, petitioners Echanis and Baylosis filed their
Supplemental Arguments to Motion for Reconsideration. 55
In an Order56 dated 27 October 2008, Judge Medina suspended the proceedings of
the case pending the resolution of G.R. No. 176830 by this Court.
On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to Quash
and/or Dismiss.57
On 23 December 2008, petitioner Echanis filed before us a special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court seeking the annulment
of the 30 April 2008 Order of Judge Abando and the 27 October 2008 Order of Judge
Medina.58 The petition, docketed as G.R. No. 185587, prayed for the unconditional
and immediate release of petitioner Echanis, as well as the issuance of a temporary
restraining order/writ of preliminary injunction to restrain his further incarceration. 59

On 5 January 2009, petitioner Baylosis filed before us a special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court also seeking the
annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008
Order of Judge Medina.60 The petition, docketed as G.R. No. 185636, prayed for the
issuance of a temporary restraining order/ writ of preliminary injunction to restrain the
implementation of the warrant of arrest against petitioner Baylosis. 61
The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009. 62
On 3 March 2009, the Court ordered the further consolidation of these two cases with
G.R. No. 176830.63 We required64 the OSG to comment on the prayer for petitioner
Echaniss immediate release, to which the OSG did not interpose any objection on
these conditions: that the temporary release shall only be for the purpose of his
attendance and participation in the formal peace negotiations between the
Government of the Republic of the Philippines (GRP) and the CPP/NPA/NDFP, set to
begin in August 2009; and that his temporary release shall not exceed six (6)
months.65 The latter condition was later modified, such that his temporary liberty shall
continue for the duration of his actual participation in the peace negotiations. 66
On 11 August 2009, the Court ordered the provisional release of petitioner Echanis
under a P100,000 cash bond, for the purpose of his participation in the formal peace
negotiations.67
Meanwhile, the Department of Justice (DOJ) filed its Opposition 68 to petitioner
Ladlads motion to quash before the RTC Manila. The trial court conducted a hearing
on the motion on 13 February 2009.69
On 6 May 2009, Judge Medina issued an Order 70 denying the motion to quash. The
motion for reconsideration filed by petitioner Ladlad was also denied on 27 August
2009.71
On 9 November 2009, petitioner Ladlad filed before us a special civil action for
certiorari under Rule 65 of the Rules of Court seeking the annulment of the 6 May
2009 and 27 August 2009 Orders of Judge Medina. 72 The petition was docketed as
G.R. No. 190005.
On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R.
Nos. 176830, 185587 and 185636. 73 We also required the OSG to file its comment
thereon. The OSG submitted its Comment74 on 7 May 2010.
On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos.
185636 and 185587.75 These Comments were filed by the OSG on 13 December
201076 and on 21 January 2011, 77 respectively. Petitioners Echanis and Baylosis filed
their Consolidated Reply78 on 7 June 2011.
On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail. 79 On 21 July
2011, petitioner Baylosis filed A Motion to Allow Petitioner to Post Bail. 80 The OSG
interposed no objection to the grant of a P100,000 cash bail to them considering that
they were consultants of the NDFP negotiating team, which was then holding
negotiations with the GRP peace panel for the signing of a peace accord. 81
On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis and
fixed their bail in the amount of P100,000, subject to the condition that their
temporary release shall be limited to the period of their actual participation in the
peace negotiations.82

Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.
OUR RULING
Petitioners
process
investigation
and
the warrants of arrest.

were

accorded
during
in

the

due
preliminary
issuance
of

A. Preliminary Investigation
A preliminary investigation is "not a casual affair." 84 It is conducted to protect the
innocent from the embarrassment, expense and anxiety of a public trial. 85 While the
right to have a preliminary investigation before trial is statutory rather than
constitutional, it is a substantive right and a component of due process in the
administration of criminal justice.86
In the context of a preliminary investigation, the right to due process of law entails the
opportunity to be heard.87 It serves to accord an opportunity for the presentation of
the respondents side with regard to the accusation. Afterwards, the investigating
officer shall decide whether the allegations and defenses lead to a reasonable belief
that a crime has been committed, and that it was the respondent who committed it.
Otherwise, the investigating officer is bound to dismiss the complaint.
"The essence of due process is reasonable opportunity to be heard and submit
evidence in support of one's defense." 88 What is proscribed is lack of opportunity to
be heard.89 Thus, one who has been afforded a chance to present ones own side of
the story cannot claim denial of due process.90
Petitioners Echanis and Baylosis allege that they did not receive a copy of the
complaint and the attached documents or evidence. 91 Petitioner Ladlad claims that he
was not served a subpoena due to the false address indicated in the 12 undated
letters of P C/Insp. Almaden and Army Captain Tiu to Prosecutor
Vivero.92 Furthermore, even though his counsels filed their formal entry of
appearance before the Office of the Prosecutor, petitioner Ladlad was still not sent a
subpoena through his counsels addresses. 93 Thus, they were deprived of the right to
file counter-affidavits.
Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp. Almaden
and Army Captain Tiu, surreptitiously inserted the Supplemental Affidavit of Zacarias
Piedad in the records of the case without furnishing petitioner Ocampo a copy.94 The
original affidavit of Zacarias Piedad dated 14 September 2006 stated that a meeting
presided by petitioner Ocampo was held in 1984, when the launching of Operation
VD was agreed upon.95Petitioner Ocampo refuted this claim in his Counter-affidavit
dated 22 December 2006 stating that he was in military custody from October 1976
until his escape in May 1985. 96 Thereafter, the Supplemental Affidavit of Zacarias
Piedad dated 12 January 2007 admitted that he made a mistake in his original
affidavit, and that the meeting actually took place in June 1985. 97 Petitioner Ocampo
argues that he was denied the opportunity to reply to the Supplemental Affidavit by
not being furnished a copy thereof.
Petitioner Ocampo also claims that he was denied the right to file a motion for
reconsideration or to appeal the Resolution of Prosecutor Vivero, because the latter

deliberately delayed the service of the Resolution by 19 days, effectively denying

petitioner Ocampo his right to due process. 98
As to the claim of petitioners Echanis and Baylosis, we quote the pertinent portion of
Prosecutor Viveros Resolution, which states:
In connection with the foregoing and pursuant to the Revised Rules of Criminal
Procedure[,] the respondents were issued and served with Subpoena at their last
known address for them to submit their counter-affidavits and that of their witnesses.
Majority of the respondents did not submit their counter-affidavits because they could
no longer be found in their last known address, per return of the subpoenas. On the
other hand, Saturnino Ocampo @ Satur, Fides Lim, Maureen Palejaro and Ruben
Manatad submitted their Counter-Affidavits. However, Vicente Ladlad and Jasmin
Jerusalem failed to submit the required Counter Affidavits in spite entry of
appearance by their respective counsels.99
Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the
complaint based on the evidence before him if a respondent could not be
subpoenaed. As long as efforts to reach a respondent were made, and he was given
an opportunity to present countervailing evidence, the preliminary investigation
remains valid.100The rule was put in place in order to foil underhanded attempts of a
respondent to delay the prosecution of offenses. 101
In this case, the Resolution stated that efforts were undertaken to serve subpoenas
on the named respondents at their last known addresses. This is sufficient for due
process. It was only because a majority of them could no longer be found at their last
known addresses that they were not served copies of the complaint and the attached
documents or evidence.
Petitioner Ladlad claims that his subpoena was sent to the nonexistent address "53
Sct. Rallos St., QC,"102 which had never been his address at any time. 103 In
connection with this claim, we take note of the fact that the subpoena to Fides Lim,
petitioner Ladlads wife,104 was sent to the same address, and that she was among
those mentioned in the Resolution as having timely submitted their counter-affidavits.
Despite supposedly never receiving a subpoena, petitioner Ladlads counsel filed a
formal entry of appearance on 8 December 2006. 105 Prosecutor Vivero had a reason
to believe that petitioner Ladlad had received the subpoena and accordingly
instructed his counsel to prepare his defense.
Petitioner Ladlad, through his counsel, had every opportunity to secure copies of the
complaint after his counsels formal entry of appearance and, thereafter, to participate
fully in the preliminary investigation. Instead, he refused to participate.
We have previously cautioned that "litigants represented by counsel should not
expect that all they need to do is sit back, relax and await the outcome of their
case."106 Having opted to remain passive during the preliminary investigation,
petitioner Ladlad and his counsel cannot now claim a denial of due process, since
their failure to file a counter-affidavit was of their own doing.
Neither do we find any merit in petitioner Ocampos allegation of collusion to
surreptitiously insert the Supplemental Affidavit of Zacarias Piedad in the records.
There was nothing surreptitious about the Supplemental Affidavit since it clearly
alludes to an earlier affidavit and admits the mistake committed regarding the date of

the alleged meeting. The date of the execution of the Supplemental Affidavit was also
clearly stated. Thus, it was clear that it was executed after petitioner Ocampo had
submitted his counter-affidavit. Should the case go to trial, that will provide petitioner
Ocampo with the opportunity to question the execution of Zacarias Piedads
Supplemental Affidavit.
Neither can we uphold petitioner Ocampos contention that he was denied the right to
be heard. For him to claim that he was denied due process by not being furnished a
copy of the Supplemental Affidavit of Zacarias Piedad would imply that the entire
case of the prosecution rested on the Supplemental Affidavit. The OSG has asserted
that the indictment of petitioner Ocampo was based on the collective affidavits of
several other witnesses107 attesting to the allegation that he was a member of the
CPP/NPA/NDFP Central Committee, which had ordered the launch of Operation VD.
As to his claim that he was denied the right to file a motion for reconsideration or to
appeal the Resolution of Prosecutor Vivero due to the 19-day delay in the service of
the Resolution, it must be pointed out that the period for filing a motion for
reconsideration or an appeal to the Secretary of Justice is reckoned from the date of
receipt of the resolution of the prosecutor, not from the date of the resolution. This is
clear from Section 3 of the 2000 National Prosecution Service Rule on Appeal:
Sec. 3. Period to appeal. The appeal shall be taken within fifteen (15) days from
receipt of the resolution, or of the denial of the motion for reconsideration/
reinvestigation if one has been filed within fifteen (15) days from receipt of the
assailed resolution. Only one motion for reconsideration shall be allowed. (Emphasis
supplied)
Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on 12
March 2007,108 the former had until 27 March 2007 within which to file either a motion
for reconsideration before the latter or an appeal before the Secretary of Justice.
Instead, petitioner Ocampo chose to file the instant petition for certiorari directly
before this Court on 16 March 2007.
B. Issuance of the Warrants of Arrest
Article III, Section 2 of the 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."
Petitioner Ocampo alleges that Judge Abando did not comply with the requirements
of the Constitution in finding the existence of probable cause for the issuance of
warrants of arrest against petitioners.109
Probable cause for the issuance of a warrant of arrest has been defined as "such
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."110 Although the Constitution provides that probable cause shall be
determined by the judge after an examination under oath or an affirmation of the
complainant and the witnesses, we have ruled that a hearing is not necessary for the
determination thereof.111 In fact, the judges personal examination of the complainant
and the witnesses is not mandatory and indispensable for determining the aptness of
issuing a warrant of arrest.112

It is enough that the judge personally evaluates the prosecutors report and
supporting documents showing the existence of probable cause for the indictment
and, on the basis thereof, issue a warrant of arrest; or if, on the basis of his
evaluation, he finds no probable cause, to disregard the prosecutor's resolution and
require the submission of additional affidavits of witnesses to aid him in determining
its existence.113
Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly
examined the records submitted by Prosecutor Vivero, the judge would have
inevitably dismissed the charge against them. 114 Additionally, petitioner Ocampo
alleges that Judge Abando did not point out facts and evidence in the record that
were used as bases for his finding of probable cause to issue a warrant of arrest. 115
The determination of probable cause for the issuance of warrants of arrest against
petitioners is addressed to the sound discretion of Judge Abando as the trial
judge.116 Further elucidating on the wide latitude given to trial judges in the issuance
of warrants of arrest, this Court stated in Sarigumba v. Sandiganbayan 117 as follows:
x x x. The trial court's exercise of its judicial discretion should not, as a general rule,
be interfered with in the absence of grave abuse of discretion. Indeed, certiorari will
not lie to cure errors in the trial court's appreciation of the evidence of the parties, the
conclusion of facts it reached based on the said findings, as well as the conclusions
of law. x x x.
Whether or not there is probable cause for the issuance of warrants for the arrest of
the accused is a question of fact based on the allegations in the Informations, the
Resolution of the Investigating Prosecutor, including other documents and/or
evidence appended to the Information.
Here, the allegations of petitioners point to factual matters indicated in the affidavits
of the complainants and witnesses as bases for the contention that there was no
probable cause for petitioners indictment for multiple murder or for the issuance of
warrants for their arrest. As stated above, the trial judges appreciation of the
evidence and conclusion of facts based thereon are not interfered with in the absence
of grave abuse of discretion. Again, "he sufficiently complies with the requirement of
personal determination if he reviews the [I]nformation and the documents attached
thereto, and on the basis thereof forms a belief that the accused is probably guilty of
the crime with which he is being charged."118
Judge Abandos review of the Information and the supporting documents is shown by
the following portion of the judges 6 March 2007 Order:
On the evaluation of the Resolution and its Information as submitted and filed by the
Provincial Prosecution of Leyte Province supported by the following documents:
Affidavits of Complainants, Sworn Statements of Witnesses and other pertinent
documents issued by the Regional Crime Laboratory Office, PNP, Region VIII and
Camp Crame, Quezon City, pictures of the grave site and skeletal remains, this court
has the findings [sic] of probable cause in the commission by all mentioned accused
of the crime charged.119
At bottom, issues involving the finding of probable cause for an indictment and
issuance of a warrant of arrest, as petitioners are doubtless aware, are primarily
questions of fact that are normally not within the purview of a petition for
certiorari,120 such as the petitions filed in the instant consolidated cases.

The
political
offense
doctrine
is
not
a
ground
to
dismiss
the
charge
against
petitioners
prior
to
a
determination
by
the
trial
court
that
the
murders
were
committed
in
furtherance
of
rebellion.
Under the political offense doctrine, "common crimes, perpetrated in furtherance of a
political offense, are divested of their character as "common" offenses and assume
the political complexion of the main crime of which they are mere ingredients, and,
consequently, cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." 121
Any ordinary act assumes a different nature by being absorbed in the crime of
rebellion.122 Thus, when a killing is committed in furtherance of rebellion, the killing is
not homicide or murder. Rather, the killing assumes the political complexion of
rebellion as its mere ingredient and must be prosecuted and punished as rebellion
alone.
However, this is not to say that public prosecutors are obliged to consistently charge
respondents with simple rebellion instead of common crimes. No one disputes the
well-entrenched principle in criminal procedure that the institution of criminal charges,
including whom and what to charge, is addressed to the sound discretion of the
public prosecutor.123
But when the political offense doctrine is asserted as a defense in the trial court, it
becomes crucial for the court to determine whether the act of killing was done in
furtherance of a political end, and for the political motive of the act to be conclusively
demonstrated.124
Petitioners aver that the records show that the alleged murders were committed in
furtherance of the CPP/NPA/NDFP rebellion, and that the political motivation behind
the alleged murders can be clearly seen from the charge against the alleged top
leaders of the CPP/NPA/NDFP as co-conspirators.
We had already ruled that the burden of demonstrating political motivation must be
discharged by the defense, since motive is a state of mind which only the accused
knows.125 The proof showing political motivation is adduced during trial where the
accused is assured an opportunity to present evidence supporting his defense. It is
not for this Court to determine this factual matter in the instant petitions.
As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte v.
CA,126 if during trial, petitioners are able to show that the alleged murders were
indeed committed in furtherance of rebellion, Section 14, Rule 110 of the Rules of
Court provides the remedy, to wit:
SECTION 14. Amendment or substitution. A complaint or information may be
amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment may
only be made with leave of court and when it can be done without causing prejudice
to the rights of the accused.
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. (n)
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 19,
Rule 119, provided the accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance at the trial. (Emphasis
supplied)
Thus, if it is shown that the proper charge against petitioners should have been
simple rebellion, the trial court shall dismiss the murder charges upon the filing of the
Information for simple rebellion, as long as petitioners would not be placed in double
jeopardy.
Section 7, Rule 117 of the Rules of Court, states:
SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in form and substance
to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
Based on the above provision, double jeopardy only applies when: (1) a first jeopardy
attached; (2) it has been validly terminated; and (3) a second jeopardy is for the same
offense as in the first.127
A first jeopardy attaches only after the accused has been acquitted or convicted, or
the case has been dismissed or otherwise terminated without his express consent, by
a competent court in a valid indictment for which the accused has entered a valid
plea during arraignment.128
To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and
penalized under Article 134 in relation to Article 135 of the Revised Penal Code,
docketed as Criminal Case No. 06-944 was filed before the RTC Makati against
petitioners and several others.129
However, petitioners were never arraigned in Criminal Case No. 06-944.1awp+
+i1 Even before the indictment for rebellion was filed before the RTC Makati,
petitioners Ocampo, Echanis and Ladlad had already filed a petition before this Court
to seek the nullification of the Orders of the DOJ denying their motion for the
inhibition of the members of the prosecution panel due to lack of impartiality and
independence.130 When the indictment was filed, petitioners Ocampo, Echanis and
Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06944.131We eventually ordered the dismissal of the rebellion case. It is clear then that a
first jeopardy never had a chance to attach.

Petitioner Ocampo shall remain on provisional liberty under the P100,000 cash bond
posted before the Office of the Clerk of Court. He shall remain on provisional liberty
until the termination of the proceedings before the RTC Manila.1wphi1
The OSG has given its conformity to the provisional liberty of petitioners Echanis,
Baylosis and Ladlad in view of the ongoing peace negotiations. Their provisional
release from detention under the cash bond of P100,000 each shall continue under
the condition that their temporary release shall be limited to the period of their actual
participation as CPP-NDF consultants in the peace negotiations with the government
or until the termination of the proceedings before the RTC Manila, whichever is
sooner. It shall be the duty of the government to inform this Court the moment that
peace negotiations are concluded.
WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of
Manila, Branch 32, is hereby ORDERED to proceed with dispatch with the hearing of
Criminal Case No. 08-262163. Petitioner Saturnino C. Ocampo shall remain on
temporary liberty under the same bail granted by this Court until the termination of the
proceedings before the RTC Manila. Petitioners Randall B. Echanis, Rafael G.
Baylosis and Vicente P. Ladlad shall remain on temporary liberty under the same bail
granted by this Court until their actual participation as CPP-NDF consultants in the
peace negotiations with the government are concluded or terminated, or until the
termination of the proceedings before the RTC Manila, whichever is sooner.
SO ORDERED.
MARIA
Chief Justice

LOURDES

P.

A.

SERENO

WE CONCUR:
ANTONIO
Associate Justice

T.

CARPIO

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO
D.
Associate Justice

DIOSDADO
M.
Associate Justice

LUCAS
P.
Associate Justice

BRION

PERALTA

BERSAMIN

MARIANO C. DEL CASTILLO

Associate Justice

ABAD

MARTIN S. VILLARAMA, JR.

Associate Justice

ROBERTO
A.
Associate Justice
JOSE
PORTUGAL
Associate Justice

PEREZ

JOSE
CATRAL
Associate Justice

MENDOZA

BIENVENIDO
L.
Associate Justice
See
MARVIC
Associate Justice

separate
MARIO

REYES

ESTELA M. PERLAS-BERNABE
Associate Justice
concurring
VICTOR
F.

opinion
LEONEN

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in
the above Decision had been reached in consultation before the cases were
assigned to the writer of the opinion of the Court.
MARIA
Chief Justice

LOURDES

P.

A.

SERENO

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D.

Baligod v. Jose Jinggoy P. Ejercito Estrada, et al., refers to the complaint for Plunder
as defined under Republic Act (RA) No. 7080, while OMB-C-C-130397,4 entitled Field Investigation Office, Office of the Ombudsman v. Jose Jinggoy
P. Ejercito-Estrada, et al., refers to the complaint for Plunder as defined under RA No.
7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt
Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed,
among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C13-0313
on
9
January
2014.

EN BANC
G.R. Nos. 212140-41, January 21, 2015

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed,
among others, that criminal proceedings for Plunder, as defined in RA No. 7080, and
for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen.
Estrada filed his counter-affidavit in OMB-C-C-13-0397 on 16 January 2014.

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner, v. BERSAMIN, OFFICE OF

THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE
OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY. LEVITO D.
BALIGOD, Respondents.

Eighteen of Sen. Estradas co-respondents in the two complaints filed their counteraffidavits
between
9
December
2013
and
14
March
2014.5chanRoblesvirtualLawlibrary

DECISION

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for
copies of the following documents:

CARPIO, J.:
It is a fundamental principle that the accused in a preliminary investigation has no
right to cross-examine the witnesses which the complainant may present. Section 3,
Rule 112 of the Rules of Court expressly provides that the respondent shall
only have the right to submit a counter-affidavit, to examine all other evidence
submitted by the complainant and, where the fiscal sets a hearing to propound
clarificatory questions to the parties or their witnesses, to be afforded an opportunity
to be present but without the right to examine or cross-examine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari 2 with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of
the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman,
National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod)
(collectively, respondents), from conducting further proceedings in OMB-C-C-1303013 and OMB-C-C-13-0397 until the present Petition has been resolved with
finality; and (2) this Courts declaration that petitioner Senator Jinggoy Ejercito
Estrada (Sen. Estrada) was denied due process of law, and that the Order of the
Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-03013 and
OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged 27
March
2014
Order
are
void.

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f)

Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents

and/or additional witnesses for the Complainants.6

Sen. Estradas request was made [p]ursuant to the right of a respondent to

examine the evidence submitted by the complainant which he may not have been
furnished (Section 3[b], Rule 112 of the Rules of Court) and to have access to the
evidence on record (Section 4[c], Rule II of the Rules of Procedure of the Office of
the
Ombudsman).7chanRoblesvirtualLawlibrary
On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313.
The pertinent portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to
Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada]
to
be furnished
all
the
filings
of
the
respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(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
xxx xxx xxx
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counteraffidavit 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.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules of
Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative
Order No. 07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute
affidavits to
substantiate
the
complaints.
b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondents to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to
furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits and
documents; and this Office complied with this requirement when it furnished [Sen.
Estrada] with the foregoing documents attached to the Orders to File CounterAffidavit
dated
19
November
2013
and
25
November
2013.
It is to be noted that there is no provision under this Offices Rules of Procedure
which entitles respondent to be furnished all the filings by the other parties, e.g. the
respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of
Court as well as the Rules of Procedure of the Office of the Ombudsman, the
respondents are only required to furnish their counter-affidavits and controverting
evidence to
the complainant,
and not to
the
other
respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based
on whatever rights he believes [that] he is entitled to or those that may be derived

from

the

phrase

due

process

of

law.

Thus, this Office cannot grant his motion to be furnished with copies of all the filings
by the other parties. Nevertheless, he should be furnished a copy of the Reply of
complainant NBI as he is entitled thereto under the rules; however, as of this date, no
Reply
has
been
filed
by
complainant
NBI.
WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings is DENIED. He is nevertheless entitled to be furnished a copy of the Reply if
complainant opts to file such pleading.8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-130397 a Joint Resolution9 which found probable cause to indict Sen. Estrada and his
co-respondents with one count of plunder and 11 counts of violation of Section 3(e) of
RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution
dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a
new
resolution
dismissing
the
charges
against
him.
Without filing a Motion for Reconsideration of the Ombudsmans 27 March 2014
Order denying his Request, Sen. Estrada filed the present Petition for Certiorari
under Rule 65 and sought to annul and set aside the 27 March 2014 Order.
THE ARGUMENTS
Sen. Estrada raised the following grounds in his Petition:
THE
OFFICE
OF
THE
OMBUDSMAN,
IN
ISSUING
THE
CHALLENGED ORDER DATED 27 MARCH 2014, ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN.
ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10
Sen. Estrada also claimed that under the circumstances, he has no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, except
through this Petition.11 Sen. Estrada applied for the issuance of a temporary
restraining order and/or writ of preliminary injunction to restrain public respondents
from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due
process of law, and as a consequence thereof, (b) the Order dated 27 March 2014,
as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent
to and affected by the issuance of the 27 March 2014 Order, are void. 12
On the same date, 7 May 2014, the Ombudsman issued in OMB-C-C-13-0313
and OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counteraffidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria
Buenaventura, and Alexis Sevidal, and directing him to comment thereon
within a non-extendible period of five days from receipt of the order.
On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his

Request to be furnished copies of counter-affidavits of his co-respondents deprived

him of his right to procedural due process, and he has filed the present Petition
before this Court. The Ombudsman denied Sen. Estradas motion to suspend in an
Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.
As of 2 June 2014, the date of filing of the Ombudsmans Comment to the
present Petition, Sen. Estrada had not filed a comment on the counteraffidavits furnished to him. On 4 June 2014, the Ombudsman issued a Joint Order
in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by
the other respondents, Sen. Estradas motion for reconsideration dated 7 April 2014.
The pertinent portion of the 4 June 2014 Joint Order stated:
While it is true that Senator Estradas request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidals affidavits was denied by Order
dated 27 March 2014 and before the promulgation of the assailed Joint Resolution,
this Office thereafter re-evaluated the request and granted it by Order dated 7 May
2014 granting his request. Copies of the requested counter-affidavits were appended
to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through
counsel.
This Office, in fact, held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a
period of five days from receipt of the 7 May 2014 Order to formally respond to
the
above-named
co-respondents
claims.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment.
Sen. Estrada insisted that he was denied due process. Although Sen. Estrada
received copies of the counter-affidavits of Cunanan, Amata, Relampagos,
Buenaventura, Figura, Sevidal, as well as one of Tuasons counter-affidavits, he
claimed that he was not given the following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;
b)

Counter-Affidavit

of

Sofia

c)

Counter-Affidavit

of

Evelyn

D.

Cruz

dated

31

Sugcang

dated

11

January

2014;

February

2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to the
FIO
Complaint);
f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to the
NBI
Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14 March
2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of
his right to procedural due process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Office of the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOT DENIED DUE PROCESS OF LAW.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.
A. LITIS

PENDENTIA EXISTS

IN

THIS

CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE

ORDINARY COURSE OF LAW.
III. PETITIONER IS NOT ENTITLED TO A WRIT OF PRELIMINARY INJUNCTION
AND/OR TEMPORARY RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod
stated that Sen. Estradas resort to a Petition for Certiorari under Rule 65 is improper.
Sen. Estrada should have either filed a motion for reconsideration of the 27 March
2014 Order or incorporated the alleged irregularity in his motion for reconsideration of
the 28 March 2014 Joint Resolution. There was also no violation of Sen. Estradas
right to due process because there is no rule which mandates that a respondent such
as Sen. Estrada be furnished with copies of the submissions of his co-respondents.

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.
Sen. Estrada argues that the Petition is not rendered moot by the subsequent
issuance of the 7 May 2014 Joint Order because there is a recurring violation of his
right to due process. Sen. Estrada also insists that there is no forum shopping as the
present Petition arose from an incident in the main proceeding, and that he has no
other plain, speedy, and adequate remedy in the ordinary course of law. Finally, Sen.
Estrada reiterates his application for the issuance of a temporary restraining order
and/or writ of preliminary injunction to restrain public respondents from conducting
further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
This Courts Ruling
Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014
Order of Sen. Estradas Request did not constitute grave abuse of discretion. Indeed,
the denial did not violate Sen. Estradas constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a respondent
with
copies
of
the
counter-affidavits
of
his
co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal

Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the

Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation
Section 3. 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 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 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 counteraffidavits 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.
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.
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
any other 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.
From the Rules of Procedure of the Office of the Ombudsman, Administrative Order
No.
7,
Rule
II:
Procedure
in
Criminal
Cases
Section 1. Grounds. A criminal complaint may be brought for an offense in violation
of R.A. 3019, as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II,
Section 2 of the Revised Penal Code, and for such other offenses committed by
public
officers
and
employees
in
relation
to
office.
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall
recommend
whether
it
may
be:

a)
b)

dismissed

outright

referred

to

for

want

of

palpable

respondent

for

merit;
comment;

c) indorsed to the proper government office or agency which has jurisdiction over the
case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e)

referred

f)

subjected

for

administrative

to

adjudication;

preliminary

or

investigation.

Sec. 3. Preliminary investigation; who may conduct. Preliminary investigation may

be
conducted
by
any
of
the
following:
1)
2)
3)

Ombudsman
Special

Investigators;
Prosecuting

Deputized

Officers;
Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.
Sec. 4. Procedure. The preliminary investigation 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:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute
affidavits
to
substantiate
the
complaints.
b) After such affidavits have been secured, the investigating officer shall issue
an order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof of
service thereof on the complainant. The complainant may file reply affidavits within
ten
(10)
days
after
service
of
the
counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a
motion for a bill of particulars be entertained. If respondent desires any matter in the
complainants affidavit to be clarified, the particularization thereof may be done at the

time of clarificatory questioning in the manner provided in paragraph (f) of this

section.
e) If the respondent cannot be served with the order mentioned in paragraph 6
hereof, or having been served, does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of the evidence on record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are
facts material to the case which the investigating officer may need to be clarified on,
he may conduct a clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-examine the
witness being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party shall be reduced
into writing and served on the witness concerned who shall be required to answer the
same
in
writing
and
under
oath.
g) Upon the termination of the preliminary investigation, the investigating 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.
xxxx
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 (1) motion for reconsideration or
reinvestigation of an approved order or resolution shall be allowed, the same to be
filed within fifteen (15) days from notice thereof with the Office of the Ombudsman, or
the proper deputy ombudsman as the case may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of
the corresponding Information in court on the basis of the finding of probable cause in
the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his corespondents violates his constitutional right to due process. Sen. Estrada, however,
fails to specify a law or rule which states that it is a compulsory requirement of
due process in a preliminary investigation that the Ombudsman furnish a
respondent with the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of
the Rules of Procedure of the Office of the Ombudsman supports Sen. Estradas
claim.

What the Rules of Procedure of the Office of the Ombudsman require is for the
Ombudsman to furnish the respondent with a copy of the complaint and the
supporting affidavits and documents at the time the order to submit the counteraffidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the
Rules of Procedure of the Office of the Ombudsman when it states, [a]fter such
affidavits [of the complainant and his witnesses] have been secured, the investigating
officer shall issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits x x x. At this point, there is still no counteraffidavit submitted by any respondent. Clearly, what Section 4(b) refers to are
affidavits of the complainant and his witnesses, not the affidavits of the corespondents. Obviously, the counter-affidavits of the co-respondents are not part of
the supporting affidavits of the complainant. No grave abuse of discretion can thus be
attributed to the Ombudsman for the issuance of the 27 March 2014 Order which
denied
Sen.
Estradas
Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman provides that a respondent shall have access to the evidence on
record, this provision should be construed in relation to Section 4(a) and (b) of the
same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states
that the investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaint. The supporting witnesses are the
witnesses of the complainant, and do not refer to the co-respondents.
Second, Section 4(b) states that the investigating officer shall issue an order
attaching thereto a copy of the affidavits and all other supporting documents,
directing the respondent to submit his counter-affidavit. The affidavits referred to in
Section 4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits to be
furnished to the respondent are the affidavits of the complainant and his supporting
witnesses. The provision in the immediately succeeding Section 4(c) of the same
Rule II that a respondent shall have access to the evidence on record does not
stand alone, but should be read in relation to the provisions of Section 4(a and b) of
the same Rule II requiring the investigating officer to furnish the respondent with the
affidavits and other supporting documents submitted by the complainant
or supporting witnesses. Thus, a respondents access to evidence on record in
Section 4(c), Rule II of the Ombudsmans Rules of Procedure refers to the affidavits
and supporting documents of the complainant or supporting witnesses in Section
4(a)
of
the
same
Rule
II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides
that [t]he 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. A respondents right to examine refers only to the evidence submitted by
the
complainant.
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under
Rule II of the Ombudsmans Rules of Procedure, there is no requirement whatsoever
that the affidavits executed by the co-respondents should be furnished to a
respondent.

Justice Velascos dissent relies on the ruling in Office of the Ombudsman v.

Reyes (Reyes case),15 an administrative case, in which a different set of rules of
procedure and standards apply. Sen. Estradas Petition, in contrast, involves the
preliminary investigation stage in a criminal case. Rule III on the Procedure
in Administrative Cases of the Rules of Procedure of the Office of the Ombudsman
applies in the Reyes case, while Rule II on the Procedure in Criminal Cases of the
Rules of Procedure of the Office of the Ombudsman applies in Sen. Estradas
Petition. In both cases, the Rules of Court apply in a suppletory character or by
analogy.16
In the Reyes case, the complainant Acero executed an affidavit against Reyes and
Pealoza, who were both employees of the Land Transportation Office. Pealoza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted
his counter-affidavit in another case before the Ombudsman as it involved the same
parties and the same incident. None of the parties appeared during the preliminary
conference. Pealoza waived his right to a formal investigation and was willing to
submit the case for resolution based on the evidence on record. Pealoza also
submitted a counter-affidavit of his third witness. The Ombudsman found Reyes guilty
of grave misconduct and dismissed him from the service. On the other hand,
Pealoza was found guilty of simple misconduct and penalized with suspension from
office without pay for six months. This Court agreed with the Court of Appeals finding
that Reyes right to due process was indeed violated. This Court remanded the
records of the case to the Ombudsman, for two reasons: (1) Reyes should not have
been meted the penalty of dismissal from the service when the evidence was not
substantial, an d (2) there was disregard of Reyes right to due process because he
was not furnished a copy of the counter-affidavits of Pealoza and of Pealozas
three witnesses. In the Reyes case, failure to furnish a copy of the counteraffidavits happened in the administrative proceedings on the merits, which
resulted in Reyes dismissal from the service. In Sen. Estradas Petition, the
denial of his Request happened during the preliminary investigation where the only
issue is the existence of probable cause for the purpose of determining whether an
information should be filed, and does not prevent Sen. Estrada from requesting a
copy of the counter-affidavits of his co-respondents during the pre-trial or even during
the
trial.
We should remember to consider the differences in adjudicating cases, particularly an
administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary
depending on whether the cases to which they are meant to apply are criminal, civil
or administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction; in civil actions and proceedings, preponderance of evidence,
as support for a judgment; and in administrative cases, substantial evidence, as basis
for adjudication. In criminal and civil actions, application of the Rules of Court is
called for, with more or less strictness. In administrative proceedings, however, the
technical rules of pleading and procedure, and of evidence, are not strictly adhered
to; they generally apply only suppletorily; indeed, in agrarian disputes application of
the Rules of Court is actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and probable cause merely implies probability of

guilt and should be determined in a summary manner. A preliminary investigation is

not a part of the trial and it is only in a trial where an accused can demand the full
exercise of his rights, such as the right to confront and cross-examine his accusers to
establish his innocence.18 Thus, the rights of a respondent in a preliminary
investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief that
a crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient
to engender a well founded belief as to the fact of the commission of a crime
and the respondent's probable guilt thereof. A preliminary investigation is not
the occasion for the full and exhaustive display of the parties evidence; it is for
the presentation of such evidence only as may engender a well-grounded belief
that an offense has been committed and that the accused is probably guilty
thereof. We are in accord with the state prosecutors findings in the case at bar that
there exists prima facie evidence of petitioners involvement in the commission of the
crime, it being sufficiently supported by the evidence presented and the facts
obtaining
therein.
Likewise devoid of cogency is petitioners argument that the testimonies of Galarion
and Hanopol are inadmissible as to him since he was not granted the opportunity of
cross-examination.
It is a fundamental principle that the accused in a preliminary investigation has
no right to cross-examine the witnesses which the complainant may present.
Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine
all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses, to
be afforded an opportunity to be present but without the right to examine or
cross-examine. Thus, even if petitioner was not given the opportunity to crossexamine Galarion and Hanopol at the time they were presented to testify during the
separate trial of the case against Galarion and Roxas, he cannot assert any legal
right to cross-examine them at the preliminary investigation precisely because such
right was never available to him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court during the trial proper and not in
the
preliminary
investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who
has jurisdiction and control over the conduct of a preliminary investigation. If
by its very nature a preliminary investigation could be waived by the accused, we
find no compelling justification for a strict application of the evidentiary rules.
In addition, considering that under Section 8, Rule 112 of the Rules of Court, the
record of the preliminary investigation does not form part of the record of the case in
the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be
admitted by the trial court if not presented in evidence by the prosecuting fiscal. And,
even if the prosecution does present such testimonies, petitioner can always object
thereto and the trial court can rule on the admissibility thereof; or the petitioner can,

during the trial, petition said court to compel the presentation of Galarion and
Hanopol for purposes of cross-examination. 19(Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked a vital
portion of the Court of Appeals reasoning. This Court quoted from the Court of
Appeals decision: x x x [A]dmissions made by Pealoza in his sworn statement are
binding only on him. Res inter alios acta alteri nocere non debet. The rights of a party
cannot be prejudiced by an act, declaration or omission of another. In OMB-C-C-130313 and OMB-C-C-13-0397, the admissions of Sen. Estradas co-respondents
can in no way prejudice Sen. Estrada. Even granting Justice Velascos argument
that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13039720 mentioned the testimonies of Sen. Estradas co-respondents like Tuason and
Cunanan, their testimonies were merely corroborative of the testimonies of
complainants witnesses Benhur Luy, Marina Sula, and Merlina Suas and were not
mentioned in isolation from the testimonies of complainants witnesses.
Moreover, the sufficiency of the evidence put forward by the Ombudsman against
Sen. Estrada to establish its finding of probable cause in the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 was judicially confirmed by
the Sandiganbayan, when it examined the evidence, found probable cause, and
issued a warrant of arrest against Sen. Estrada on 23 June 2014.
We likewise take exception to Justice Brions assertion that the due process
standards that at the very least should be considered in the conduct of a
preliminary investigation are those that this Court first articulated in Ang Tibay
v. Court of Industrial Relations [Ang Tibay].21 Simply put, the Ang
Tibay guidelines for administrative cases do not apply to preliminary investigations in
criminal cases. An application of the Ang Tibay guidelines to preliminary
investigations
will
have
absurd
and
disastrous
consequences.
Ang Tibay enumerated the constitutional requirements of due process, which Ang
Tibay described as the fundamental and essential requirements of due
process in trials and investigations of an administrative character. 22 These
requirements are fundamental and essential because without these, there is no
due process as mandated by the Constitution. These fundamental and essential
requirements cannot be taken away by legislation because they are part of
constitutional due process. These fundamental and essential requirements are:
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof.
x
x
x.
(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the
evidence
presented.
x
x
x.
(3) While the duty to deliberate does not impose the obligation to decide right, it does
imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, x x x.
(4) Not only must there be some evidence to support a finding or conclusion, but the

evidence must be substantial. Substantial evidence is more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as adequate to
support
a
conclusion.
x
x
x.
(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or
his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision. x x x.
(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in such a manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered. The performance of this
duty is inseparable from the authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS):
what Ang Tibay failed to explicitly state was, prescinding from the general principles
governing due process, the requirement of an impartial tribunal which, needless to
say, dictates that one called upon to resolve a dispute may not sit as judge and jury
simultaneously,
neither
may
he
review
his
decision
on
appeal.25 The GSIS clarification
affirms
the
non-applicability
of
the Ang
Tibay guidelines to preliminary investigations in criminal cases: The investigating
officer, which is the role that the Office of the Ombudsman plays in the investigation
and prosecution of government personnel, will never be the impartial tribunal required
in Ang Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in
conducting a preliminary investigation, after conducting its own fact-finding
investigation, is to determine probable cause for filing an information, and not to
make a final adjudication of the rights and obligations of the parties under the law,
which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case
after
filing
the
corresponding
information.
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.26 The Ombudsman and the prosecution
service under the control and supervision of the Secretary of the Department of
Justice are inherently the fact-finder, investigator, hearing officer, judge and jury of the
respondent in preliminary investigations. Obviously, this procedure cannot comply
with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with
this procedure because this is merely an Executive function, a part of the law
enforcement process leading to trial in court where the requirements mandated
in Ang Tibay, as amplified in GSIS, will apply. This has been the procedure under the
1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay, as amplified in GSIS,
should apply to preliminary investigations will mean that all past and present
preliminary investigations are in gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present
case when he filed his Request, is not yet an accused person, and hence cannot
demand the full exercise of the rights of an accused person:

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, 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.27
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,28 that the rights conferred upon accused persons to participate in
preliminary investigations concerning themselves depend upon the provisions
of law by which such rights are specifically secured, rather than upon the
phrase due process of law. This reiterates Justice Jose P. Laurels oft-quoted
pronouncement in Hashim v. Boncan29 that the right to a preliminary investigation
is statutory, not constitutional. In short, the rights of a respondent in a preliminary
investigation are merely statutory rights, not constitutional due process rights. An
investigation to determine probable cause for the filing of an information does not
initiate a criminal action so as to trigger into operation Section 14(2), Article III of the
Constitution.30 It is the filing of a complaint or information in court that initiates a
criminal
action.31
The rights to due process in administrative cases as prescribed in Ang Tibay, as
amplified in GSIS, are granted by the Constitution; hence, these rights cannot be
taken away by mere legislation. On the other hand, as repeatedly reiterated by this
Court, the right to a preliminary investigation is merely a statutory right, 32 not part of
the fundamental and essential requirements of due process as prescribed in Ang
Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by
legislation. The constitutional right of an accused to confront the witnesses against
him does not apply in preliminary investigations; nor will the absence of a preliminary
investigation be an infringement of his right to confront the witnesses against him. 33 A
preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial. 34
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than
the evidence needed in a preliminary investigation to establish probable cause, or to
establish the existence of a prima facie case that would warrant the prosecution of a

case. Ang Tibay refers to substantial evidence, while the establishment of probable
cause needs only more than bare suspicion, or less than evidence which would
justify . . . conviction. In the United States, from where we borrowed the concept of
probable cause,35 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 Marshalls
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 communitys 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,
nontechnical 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.36
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. Justice Brion, in the recent case
of Unilever Philippines, Inc. v. Tan37 (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing that
more likely than not, a crime has been committed and there is enough reason to
believe that it was committed by the accused. It need not be based on clear and
convincing evidence of guilt, neither on evidence establishing absolute certainty of
guilt. What is merely required is probability of guilt. Its determination, too, does not
call for the application of rules or standards of proof that a judgment of conviction
requires after trial on the merits. Thus, in concluding that there is probable cause, it
suffices that it is believed that the act or omission complained of constitutes the very
offense
charged.
It is also important to stress that the determination of probable cause does not
depend on the validity or merits of a partys accusation or defense or on the
admissibility or veracity of testimonies presented. As previously discussed, these
matters are better ventilated during the trial proper of the case. As held
in Metropolitan Bank & Trust Company v. Gonzales:
Probable cause has been defined as 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. x x x. The term does not mean actual or positive cause
nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is
a trial for the reception of evidence of the prosecution in support of the charge.
(Boldfacing and italicization supplied)
Justice Brions pronouncement in Unilever that the determination of probable cause
does not depend on the validity or merits of a partys accusation or defense or on
the admissibility or veracity of testimonies presented correctly recognizes the
doctrine in the United States that the determination of probable cause can rest
partially, or even entirely, on hearsay evidence, as long as the person making the
hearsay statement is credible. In United States v. Ventresca,38 the United States
Supreme Court held:
While a warrant may issue only upon a finding of probable cause, this Court has
long held that the term probable cause . . . means less than evidence which would
justify condemnation, Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a

finding of probable cause may rest upon evidence which is not legally competent in
a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court
stated in Brinegar v. United States, 338 U.S. 160, 173, There is a large difference
between the two things to be proved (guilt and probable cause), as well as between
the tribunals which determine them, and therefore a like difference in the quanta and
modes of proof required to establish them. Thus, hearsay may be the basis for
issuance of the warrant so long as there . . . [is] a substantial basis for
crediting the hearsay. Jones v. United States, supra, at 362 U.S. 272. And, in
Aguilar, we recognized that an affidavit may be based on hearsay information
and need not reflect the direct personal observations of the affiant, so long as
the magistrate is informed of some of the underlying circumstances
supporting the affiants conclusions and his belief that any informant involved
whose identity need not be disclosed . . . was credible or his information
reliable. Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there
is substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such investigation
is merely preliminary, and does not finally adjudicate rights and obligations of
parties. However, in administrative cases, where rights and obligations are finally
adjudicated, what is required is substantial evidence which cannot rest entirely or
even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial
basis can include hearsay evidence. To require the application of Ang Tibay, as
amplified in GSIS, in preliminary investigations will change the quantum of
evidence required in determining probable cause from evidence of likelihood or
probability
of
guilt
to
substantial
evidence
of
guilt.
It is, moreover, necessary to distinguish between the constitutionally guaranteed
rights of an accused and the right to a preliminary investigation. To treat them the
same will lead to absurd and disastrous consequences. All pending criminal
cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as
amplified in GSIS. Preliminary investigations are conducted by prosecutors, who are
the same officials who will determine probable cause and prosecute the cases in
court. The prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as
amplified in GSIS. A reinvestigation by an investigating officer outside of the
prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be
applied. This will require a new legislation. In the meantime, all pending criminal
cases in all courts will have to be remanded for reinvestigation, to proceed only when
a new law is in place. To require Ang Tibay, as amplified in GSIS, to apply to
preliminary investigation will necessarily change the concept of preliminary
investigation as we know it now. Applying the constitutional due process in Ang Tibay,
as amplified in GSIS, to preliminary investigation will necessarily require the
application of the rights of an accused in Section 14(2), Article III of the 1987
Constitution. This means that the respondent can demand an actual hearing and the
right to cross-examine the witnesses against him, rights which are not afforded at
present
to
a
respondent
in
a
preliminary
investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with
pending preliminary investigations but even to those convicted by final judgment and

already serving their sentences. The rule is well-settled that a judicial decision applies
retroactively if it has a beneficial effect on a person convicted by final judgment even
if he is already serving his sentence, provided that he is not a habitual criminal. 39 This
Court retains its control over a case until the full satisfaction of the final judgment
conformably with established legal processes. 40 Applying Ang Tibay, as amplified
in GSIS, to preliminary investigations will result in thousands of prisoners, convicted
by
final
judgment,
being
set
free
from
prison.
Second. Sen.

Estradas

present

Petition

for

Certiorari

is premature.

Justice Velascos dissent prefers that Sen. Estrada not be subjected to the rigors of a
criminal prosecution in court because there is a pending question regarding the
Ombudsmans grave abuse of its discretion preceding the finding of a probable cause
to indict him. Restated bluntly, Justice Velascos dissent would like this Court to
conclude that the mere filing of the present Petition for Certiorari questioning the
Ombudsmans denial of Sen. Estradas Request should have, by itself, voided all
proceedings
related
to
the
present
case.
Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estradas Request, the Ombudsman subsequently reconsidered its Order. On 7 May
2014, the same date that Sen. Estrada filed the present Petition, the Ombudsman
issued
a
Joint
Order
in
OMB-C-C-13-0313
and
OMB-C-C-13-0397
that furnished Sen. Estrada with the counter-affidavits of Ruby Tuason, Dennis
Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria
Buenaventura, and Alexis Sevidal, and directed him to comment within a nonextendible period of five days from receipt of said Order. Sen. Estrada did not file
any comment, as noted in the 4 June 2014 Joint Order of the Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen.
Estradas Motion for Reconsideration of its 28 March 2014 Joint Resolution which
found probable cause to indict Sen. Estrada and his co-respondents with one count
of plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4
June 2014 Joint Order, the Ombudsman stated that [t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in light of
its grant to Senator Estrada a period of five days from receipt of the 7 May 2014
Order to formally respond to the above-named respondents claims.
We underscore Sen. Estradas procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014 Order
in OMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this Petition
for Certiorari before this Court. Sen. Estradas resort to a petition for certiorari
before this Court stands in stark contrast to his filing of his 7 April 2014 Motion for
Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The
present
Petition
for
Certiorari
is premature.
A motion for reconsideration allows the public respondent an opportunity to correct its
factual and legal errors. Sen. Estrada, however, failed to present a compelling reason
that the present Petition falls under the exceptions 41 to the general rule that the filing
of a motion for reconsideration is required prior to the filing of a petition for certiorari.
This Court has reiterated in numerous decisions that a motion for reconsideration

is mandatory before

the

filing

of

petition

for

certiorari.42

Justice Velascos dissent faults the majority for their refusal to apply the Reyes case
to the present Petition. Justice Velascos dissent insists that this Court cannot
neglect to emphasize that, despite the variance in the quanta of evidence required, a
uniform observance of the singular concept of due process is indispensable in all
proceedings.
As we try to follow Justice Velascos insistence, we direct Justice Velasco and those
who join him in his dissent to this Courts ruling in Ruivivar v. Office of the
Ombudsman (Ruivivar),43 wherein we stated that [t]he law can no longer help one
who had been given ample opportunity to be heard but who did not take full
advantage
of
the
proffered
chance.
The Ruivivar case, like the Reyes44 case, was also an administrative case before the
Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar
administratively liable for discourtesy in the course of her official functions and
imposed on her the penalty of reprimand. Petitioner filed a motion for reconsideration
of the decision on the ground that she was not furnished copies of the affidavits of the
private respondents witnesses. The Ombudsman subsequently ordered that
petitioner be furnished with copies of the counter-affidavits of private respondents
witnesses, and that petitioner should file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances. Petitioner
received copies of the affidavits, and simply filed a manifestation where she
maintained that her receipt of the affidavits did not alter the deprivation of her right to
due process or cure the irregularity in the Ombudsmans decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private respondents
witnesses after the Ombudsman rendered a decision against her. We disposed of
petitioners deprivation of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the petitioner
failed to exhaust all the administrative remedies available to her before the
Ombudsman. This ruling is legally correct as exhaustion of administrative remedies is
a requisite for the filing of a petition for certiorari. Other than this legal significance,
however, the ruling necessarily carries the direct and immediate implication that the
petitioner has been granted the opportunity to be heard and has refused to avail of
this opportunity; hence, she cannot claim denial of due process. In the words of the
CA ruling itself: Petitioner was given the opportunity by public respondent to rebut
the affidavits submitted by private respondent. . . and had a speedy and adequate
administrative remedy but she failed to avail thereof for reasons only known to her.
For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due
process embody linked and related principles. The exhaustion principle applies
when the ruling court or tribunal is not given the opportunity to re-examine its findings
and conclusions because of an available opportunity that a party seeking recourse
against the court or the tribunals ruling omitted to take. Under the concept of due
process, on the other hand, a violation occurs when a court or tribunal rules
against a party without giving him or her the opportunity to be heard. Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while

due process is considered from the point of view of the litigating party against whom
a ruling was made. The commonality they share is in the same opportunity that
underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioners counter-statement of facts was denied the
Ombudsman; hence, the petitioner is barred from seeking recourse at the CA
because the ground she would invoke was not considered at all at the Ombudsman
level. At the same time, the petitioner who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondents witnesses was not denied
and cannot now claim denial of due process because she did not take advantage of
the
opportunity
opened
to
her
at
the
Ombudsman
level.
The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondents failure to furnish her copies of the
affidavits of witnesses) and on questions relating to the appreciation of the evidence
on record. The Ombudsman acted on this motion by issuing its Order of January 17,
2003 belatedly furnishing her with copies of the private respondents witnesses,
together with the directive to file, within ten (10) days from receipt of this Order, such
pleading
which
she
may
deem
fit
under
the
circumstances.
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply
chose to file a Manifestation where she took the position that The order of the
Ombudsman dated 17 January 2003 supplying her with the affidavits of the
complainant does not cure the 04 November 2002 order, and on this basis prayed
that the Ombudsmans decision be reconsidered and the complaint dismissed for
lack
of
merit.
For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioners
motion.
In the February 12, 2003 Order, the Ombudsman denied the petitioners motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the
Ombudsman fully discussed in this Order the due process significance of the
petitioners failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:
Undoubtedly, the respondent herein has been furnished by this Office with copies of
the affidavits, which she claims she has not received. Furthermore, the respondent
has been given the opportunity to present her side relative thereto, however, she
chose not to submit countervailing evidence or argument. The respondent, therefore
(sic), cannot claim denial of due process for purposes of assailing the Decision
issued in the present case. On this score, the Supreme Court held in the case
of People v. Acot, 232 SCRA 406, that a party cannot feign denial of due process
where he had the opportunity to present his side. This becomes all the more
important since, as correctly pointed out by the complainant, the decision issued in
the present case is deemed final and unappealable pursuant to Section 27 of
Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite
the clear provisions of the law and the rules, the respondent herein was given
the opportunity not normally accorded, to present her side, but she opted not
to do so which is evidently fatal to her cause. [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioners cause
is a lost one, not only for her failure to exhaust her available administrative remedy,
but also on due process grounds. The law can no longer help one who had been
given ample opportunity to be heard but who did not take full advantage of the
proffered chance.45
Ruivivar applies with even greater force to the present Petition because here the
affidavits of Sen. Estradas co-respondents were furnished to him before the
Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were
furnished after the
Ombudsman
issued
a
decision.
Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad)
and Duterte v. Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful
reading of these cases, however, would show that they do not stand on all fours with
the present case. In Tatad, this Court ruled that the inordinate delay in terminating
the preliminary investigation and filing the information [by the Tanodbayan] in the
present case is violative of the constitutionally guaranteed right of the petitioner to
due process and to a speedy disposition of the cases against him. 48 The Tanodbayan
took almost three years to terminate the preliminary investigation, despite
Presidential Decree No. 911s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte, where
the petitioners were merely asked to comment and were not asked to file counteraffidavits as is the proper procedure in a preliminary investigation. Moreover,
in Duterte, the Ombudsman took four years to terminate its preliminary investigation.
As we follow the reasoning in Justice Velascos dissent, it becomes more apparent
that Sen. Estradas present Petition for Certiorari is premature for lack of filing of a
motion for reconsideration before the Ombudsman. When the Ombudsman gave
Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the
given period for the filing of his comment, Sen. Estrada failed to avail of the
opportunity to be heard due to his own fault. Thus, Sen. Estradas failure cannot in
any way be construed as violation of due process by the Ombudsman, much less of
grave abuse of discretion. Sen. Estrada has not filed any comment, and still chooses
not
to.
Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and
should
be
summarily
dismissed.
In his verification and certification of non-forum shopping in the present petition filed
on 7 May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April
2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397, raising as sole issue the finding
of
probable
cause
in
the Joint
Resolution dated
28
March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49(Emphasis supplied)
Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint Resolution
prayed that the Ombudsman reconsider and issue a new resolution dismissing the
charges against him. However, in this Motion for Reconsideration, Sen. Estrada

assailed the Ombudsmans 27 March 2014 Joint Order denying his Request, and
that such denial is a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule
112, Section 4 of the Rules of Court] and principles. A reading of the Joint
Resolution will reveal that various pieces of evidence which Senator Estrada
was not furnished with hence, depriving him of the opportunity to controvert
the same were heavily considered by the Ombudsman in finding probable
cause to charge him with Plunder and with violations of Section 3(e) of R.A. No.
3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada filed a Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of
New Witnesses and Other Filings, pursuant to the right of a respondent to examine
the evidence submitted by the complainant which he may not have been furnished
(Section 3[b], Rule 112 of the Rules of Court), and to have access to the evidence on
record (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator Estrada
and the laws vigilance in protecting the rights of an accused, the Special Panel of
Investigators, in an Order dated 27 March 2014, unceremoniously denied the
request on the ground that there is no provision under this Offices Rules of
Procedure which entitles respondent to be furnished all the filings by the other
parties x
x
x
x.
(Order
dated
27
March
2013,
p.
3)
As such, Senator Estrada was not properly apprised of the evidence offered
against him, which were eventually made the bases of the Ombudsmans
finding of probable cause.50
The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4 June
2014 Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for
Reconsideration with the Ombudsman the violation of his right to due process, the
same
issue
he
is
raising
in
this
petition.
In the verification and certification of non-forum shopping attached to his petition
docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the
pendency of the present petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his petition in G.R. Nos. 21276162, Sen. Estrada again mentioned the Ombudsmans 27 March 2014 Joint Order
denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsmans finding of
probable cause, which he maintains is without legal or factual basis, but also that
such finding of probable cause was premised on evidence not disclosed to him,
including those subject of his Request to be Furnished with Copies of CounterAffidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings dated
20
March
2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the
following documents i.

Alexis G. Sevidals Counter-Affidavits dated 15 January and 24

February 2014;

ii.

Dennis L. Cunanans Counter-Affidavits both dated 20 February

2014;

iii.

Francisco B. Figuras Counter-Affidavit dated 08 January 2014;

iv.

Ruby Tuasons Counter-Affidavits both dated 21 February 2014;

v.

Gregoria G. Buenaventuras Counter-Affidavit dated 06 March 2014;

and

vi.

Philippine Daily Inquirer Online Edition news article entitled Benhur

Luy upstages Napoles in Senate Hearing by Norman Bordadora
and TJ Borgonio, published on 06 March 2014,

none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.
xxxx
II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT
RESOLUTION DATED
28
MARCH
2014
AND
CHALLENGED JOINT
ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF
ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADAS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL
PROTECTION OF THE LAWS.
xxxx
2.17

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estradas comment to the voluminous documents
comprising the documents it furnished Sen. Estrada to a non-extendible period of
five (5) days, making it virtually impossible for Sen. Estrada to adequately study the
charges leveled against him and intelligently respond to them. The Joint Order also
failed to disclose the existence of other counter-affidavits and failed to furnish Sen.
Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of
probable cause was the sole issue he raised before the Ombudsman in his Motion
for
Reconsideration
dated
7
April
2014
is
obviously
false.
Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans

4 June 2014 Joint Order which denied his motion for reconsideration of the 28 March
2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint Order
stated that the Ombudsman held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to [Sen. Estrada] a period of five
days from receipt of the 7 May 2014 [Joint] Order to formally respond to the abovenamed
co-respondents
claims.
Sen. Estrada claims that his rights were violated but he flouts the rules himself.
The rule against forum shopping is not limited to the fulfillment of the requisites of litis
pendentia.52 To determine whether a party violated the rule against forum shopping,
the most important factor to ask is whether the elements of litis pendentia are
present, or whether a final judgment in one case will amount to res judicata in
another.53 Undergirding the principle of litis pendentia is the theory that a party is not
allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same
matter should not be the subject of controversy in court more than once in order that
possible conflicting judgments may be avoided, for the sake of the stability in the
rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed was a petition for certiorari, a
recourse that in the usual course and because of its nature and purpose is
not covered by the rule on forum shopping. The exception from the forum
shopping rule, however, is true only where a petition for certiorari is properly or
regularly invoked in the usual course; the exception does not apply when the
relief sought, through a petition for certiorari, is still pending with or has as yet
to be decided by the respondent court, tribunal or body exercising judicial or
quasi-judicial body, e.g., a motion for reconsideration of the order assailed via a
petition for certiorari under Rule 65, as in the present case. This conclusion is
supported and strengthened by
Section 1, Rule 65 of the Revised Rules of Court which provides that the availability
of a remedy in the ordinary course of law precludes the filing of a petition
for certiorari; under this rule, the petitions dismissal is the necessary consequence if
recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in
possible conflicting rulings, or at the very least, to complicated situations,
between the RTC and the Court of Appeals. An extreme possible result is for the
appellate court to confirm that the RTC decision is meritorious, yet the RTC may at
the same time reconsider its ruling and recall its order of dismissal. In this eventuality,
the result is the affirmation of the decision that the court a quo has backtracked on.
Other permutations depending on the rulings of the two courts and the timing of these
rulings are possible. In every case, our justice system suffers as this kind of
sharp practice opens the system to the possibility of manipulation; to
uncertainties when conflict of rulings arise; and at least to vexation for
complications other than conflict of rulings. Thus, it matters not that ultimately the
Court of Appeals may completely agree with the RTC; what the rule on forum
shopping addresses are the possibility and the actuality of its harmful effects
on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging

violation of due process by the Ombudsman even as his Motion for Reconsideration
raising the very same issue remained pending with the Ombudsman. This is plain and
simple forum shopping, warranting outright dismissal of this Petition.
SUMMARY
The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its
supporting affidavits and documents, fully complied with Sections 3 and 4 of Rule
112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of
Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the
Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the
Ombudsman require the investigating officer to furnish the respondent with copies of
the affidavits of the complainant and affidavits of his supporting witnesses. Neither of
these Rules require the investigating officer to furnish the respondent with copies of
the affidavits of his co-respondents. The right of the respondent is only to
examine the evidence submitted by the complainant, as expressly stated in
Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has
unequivocally ruled in Paderanga that Section 3, Rule 112 of the Revised Rules of
Criminal Procedure expressly provides that the respondent shall only have the right
to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions
to the parties or their witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine. Moreover, Section 4 (a, b and c) of
Rule II of the Ombudsmans Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses. There is no law or rule requiring the
investigating officer to furnish the respondent with copies of the affidavits of his corespondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even
furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents
whom he specifically named, as well as the counter-affidavits of some of other corespondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyance
the disposition of the motions for reconsideration because the Ombudsman granted
Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally respond
to the claims made by his co-respondents. The Ombudsman faithfully complied with
the existing Rules on preliminary investigation and even accommodated Sen. Estrada
beyond what the Rules required. Thus, the Ombudsman could not be faulted with
grave abuse of discretion. Since this is a Petition for Certiorari under Rule 65, the
Petition fails in the absence of grave abuse of discretion on the part of the
Ombudsman.
The constitutional due process requirements mandated in Ang Tibay, as amplified
in GSIS, are not applicable to preliminary investigations which are creations of
statutory law giving rise to mere statutory rights. A law can abolish preliminary
investigations without running afoul with the constitutional requirements of due
process as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for
preliminary investigations do not comply, and were never intended to comply,
with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate

with finality rights and obligations of parties, while administrative investigations

governed by Ang Tibay, as amplified in GSIS, so adjudicate. Ang Tibay, as amplified
in GSIS, requires substantial evidence for a decision against the respondent in the
administrative case. In preliminary investigations, only likelihood or probability of
guilt is required. To apply Ang Tibay, as amplified in GSIS, to preliminary
investigations will change the quantum of evidence required to establish probable
cause. The respondent in an administrative case governed by Ang Tibay, as
amplified in GSIS, has the right to an actual hearing and to cross-examine the
witnesses against him. In preliminary investigations, the respondent has no such
rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the
hearing officer must be impartial and cannot be the fact-finder, investigator, and
hearing officer at the same time. In preliminary investigations, the same public officer
may be the investigator and hearing officer at the same time, or the fact-finder,
investigator and hearing officer may be under the control and supervision of the
same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To
now declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental
and essential requirements in preliminary investigations will render all past and
present preliminary investigations invalid for violation of constitutional due
process. This will mean remanding for reinvestigation all criminal cases now
pending in all courts throughout the country. No preliminary investigation can
proceed until a new law designates a public officer, outside of the prosecution
service, to determine probable cause. Moreover, those serving sentences by final
judgment would have to be released from prison because their conviction violated
constitutional
due
process.
Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in
OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition.
He should have filed a Motion for Reconsideration, in the same manner that he filed a
Motion for Reconsideration of the 15 May 2014 Order denying his motion to suspend
proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if
there is no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law against the acts of the public respondent. 56 The plain, speedy and
adequate remedy expressly provided by law is a Motion for Reconsideration of the 27
March 2014 Order of the Ombudsman. Sen. Estradas failure to file a Motion for
Reconsideration
renders
this
Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the
Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the
issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estradas present
Petition for Certiorari is not only premature, it also constitutes forum shopping.
WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO

ORDERED.cralawlawlibrary

Sereno, (Chief Justice),Peralta, Del Castillo, Villarama, Jr., Perez, Mendoza, Reyes,
Perlas-Bernabe,
and Jardeleza,
JJ.,
concur.
Velasco,
Jr.,
J.,
I
register
my
Dissenting
Opinion.

Leonardo-De Castro, J., I join

the Dissent of Justice
Brion, J.,* Justice Brion left his vote; see his Dissenting
Bersamin,
J.,
I
join
the
Dissent
of
J.
Leonen, J., I concur see saparate opinion.

Velasco.
Opinion.
Velasco.