Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION
PCGG CHAIRMAN MAGDANGAL B.
ELMA and PRESIDENTIAL
COMMISSION ON GOOD
GOVERNMENT,
Petitioners,

G.R. No. 155996

Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

-versus Promulgated:
REINER JACOBI, CRISPIN REYES, MA.
MERCEDITAS N. GUTIERREZ, in her
capacity as Undersecretary of the
Department of Justice,
Respondents.

June 27, 2012

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

DECISION
BRION, J.:
Before the Court is a petition for certiorari under Rule 65 filed by the Presidential Commission
on Good Government (PCGG) and its former Chairman Magdangal Elma [1] (petitioners) questioning the
resolutions, dated July 17, 2002 [2] and September 20, 2002,[3] of then Undersecretary of Justice Ma.
Merceditas N. Gutierrez. The assailed resolutions dismissed the petitioners petition for review, denied the
petitioners motion for reconsideration and ultimately ruled that no probable cause for falsification and use
of falsified document existed against Atty. Crispin Reyes and Reiner Jacobi (respondents).
ANTECEDENTS

The records show that on two occasions - evidenced by the December 22, 1988 and May 6, 1991
letters[4] - then PCGG Commissioner, and later Chairman, David M. Castro, purportedly acting for the
PCGG, agreed to pay Jacobi a fee of ten percent (10%) of any amount actually recovered and legally
turned over to the Republic of the Philippines from the ill-gotten wealth of Ferdinand E. Marcos and/or
his family, associates, subordinates and cronies, based on the information and evidence that Jacobi would
furnish the PCGG. Chairman Castro sent another letter dated December 19, 1991 to Jacobi confirming
that actual recovery [of] the Kloten gold account managed by Union Bank of Switzerland (UBS) subject
of [Jacobis] information and other efforts done will be properly compensated as previously committed.
[5]

We shall collectively refer to these letters as PCGG letters.

A few years later, a similar letter dated August 27, 1998 (De Guzman letter) was sent by the new

PCGG Chairman, Felix M. de Guzman, to Jacobi, confirming the PCGGs promise (as contained in the
PCGG letters) to pay Jacobi and his intelligence group a 10% fee for the US$13.2 billion ill-gotten wealth
of Former President Ferdinand E. Marcos, his family, trustee or fronts in UBS still/now being claimed and
recovered by the Philippine Government. The De Guzman letter reads in full: [6]
27 August 1998
Mr. Reiner Jacobi
c/o Business Center
JW Marriott Hotel, Hong Kong
Care: Counsel Crispin T. Reyes
Dear Mr. Jacobi:
I refer to the letters dated 22 December 1988, 6 May 1991 and 19 December
1991 addressed to you from Mr. David M. Castro, former Chairman of the PCGG, copy
(sic) for ready reference.
I hereby confirm the agreement of the PCGG to pay you/your group a ten (10%) percent
fee of the US$13.2 Billions ill-gotten wealth, unexplained or hidden deposits/assets of
former President Ferdinand E. Marcos, his family, trustees or fronts in Union Bank of
Switzerland, still/now being claimed and recovered by the Philippine government which
is being assisted/facilitated/realized by their identification as a result of the findings,
information and evidence supplied by you/your group to the PCGG that is otherwise not
known to the Commission from other sources nor previously and voluntarily disclosed by
the Marcoses, their trustees, associates or cronies.
Very truly yours,
FOR THE COMMISSION:

[Signed]
FELIX M. DE GUZMAN [Countersigned by Director Danilo Daniel]
Chairman
FMG/lai[7]
d01[8]

a.

The Sandiganbayan petition

On March 8, 1999, the respondents filed with the Sandiganbayan a verified Petition

for Mandamus, Prohibition and Certiorari (with Prayer for a Writ of Preliminary Mandatory and
Prohibitory Injunction)[9] (Sandiganbayan petition) against the petitioners (docketed as Civil Case No.
006). Atty. Reyes acted as Jacobis counsel. Jacobi did not sign or verify the petition.
The contents of the PCGG letters and the De Guzman letter, among others, were substantially
reproduced in the Sandiganbayan petition and were attached as annexes. (The De Guzman letter was
attached as Annex E). Likewise attached (as Annex G), was a June 24, 1998 letter from PCGG
Chairman Magtanggol Gunigundo (Gunigundo letter), seeking judicial assistance from the Swiss
Ministry of Justice and the Police of Switzerland regarding Marcos-related accounts in UBS.[10]
The Sandiganbayan petition began with the alleged commitment of the PCGG to Jacobi (and his
group, including Atty. Reyes[11]) - as contained in the PCGG letters and the De Guzman letter. It also cited
the reports[12] submitted by Jacobis group to the PCGG detailing their ill-gotten- wealth-recovery efforts
and services, as well as their follow-up letters [13] to the government to press for the UBS account. They
alleged that due to their persistence, the PCGG (through Chairman Gunigundo and Chairman De
Guzman) made an official request [14] to the Swiss Ministry of Justice to freeze the US$13.2 billion UBS
account (as of August 25, 1998[15]) in the name of Irene Marcos Araneta, alias I. Araneta (UBS account).
[16]

They claimed that the UBS itself admitted the existence of this account, and only denied that the

account is owned in any way by the Marcoses.[17]

The Sandiganbayan petition also strongly questioned [18] Chairman Elmas appointment and
reappointment of two Swiss Trojan Horses lawyers (Peter Cosandey and Martin Kurer) who had been
allegedly blocking the governments efforts to recover the UBS account by secretly working for the UBS.

[19]

It alleged that Chairman Elma was working with these Swiss lawyers to frustrate the PCGG and its

recovery efforts. Specifically, it alleged that:

In not revoking the re-appointment of Martin Kurer as PCGG lawyer despite the honest
and sincere suggestions, pleadings and demands by [Atty. Reyes]; in not pursuing the
great efforts of the Philippine government through Ambassador Tomas T. Syquia to have
the account frozen; in appointing, allowing and in fact abetting Martin Kurer who is
associated (sic) and conspiring with Peter Cosandey in blocking the recovery of said
account; [Chairman Elma] has shown beyond reasonable doubt that he has a personal
agenda and is unusually interested in protecting [the UBS account] for another person or
persons, other than the Filipino people.[20]
The Sandiganbayan petition prayed:
AFTER NOTICE AND HEARING, to declare the re-appointment of Swiss lawyer
Martin Kurer and Peter Cosandey as having been issued in grave abuse of discretion and
highly prejudicial to the interests of the Philippine Government and the Filipino people
and therefore null and void; to order [Chairman Elma and PCGG] to perform their
mandated duty to recover [the UBS account] for the Filipino people; and to sentence
[Chairman Elma] to pay [Atty. Reyes and Jacobi] actual damages that may be proved
during the trial; xxx
On March 15, 1999, Atty. Reyes, through the Anti-Graft League of the Philippines, Inc. (AGLP),
filed a complaint with a similar thrust against Chairman Elma with the Office of the Ombudsman
(Ombudsman complaint).[21] Atty. Reyes attached the Sandiganbayan petition ( together with its annexes)
to this complaint.[22] Atty. Reyes alleged that Chairman Elmas (i) reappointment of Martin Kurer, despite
official information that he had been secretly working for UBS, and (ii) failure to follow-up the PCGGs
previous official requests to the Swiss authorities were obvious violations of the provisions of Republic
Act No. 3019.[23]
Later, Atty. Reyes filed an Urgent Manifestation [24] with the Sandiganbayan, withdrawing the De
Guzman letter and the Gunigundo letter as annexes of the Sandiganbayan petition. A similar
manifestation was filed with the Office of the Ombudsman regarding the Ombudsman complaint. [25] Atty.
Reyes explained that he had been prompted to withdraw these letters after he learned of reports
questioning the authenticity of these documents. Atty. Reyes asserted that Jacobi had nothing to do
with the preparation nor with the attachment of these letters to the Sandiganbayan petition and to the
Ombudsman complaint; thus -

Annex E of the [Sandiganbayan Petition] is [the De Guzman letter] which was previously
shown to [Chairman de Guzman] by [Atty. Reyes] before it was used as an annex and he
stated that the statements therein appear to be in the document he has signed. xxx
[Jacobi] had absolutely nothing to do about this Annex E
xxx
At any rate, this questionable document is merely a restatement of PCGG Chairman
Castros commitment to Mr. Jacobi which is still perfectly binding and enforceable xxx
and, further, it is absolutely immaterial to the main issue in this case.
Hence, this document marked Annex E of the [Sandiganbayan Petition] should be
withdrawn, as it is now hereby withdrawn xxx, from the records of this case.
Further, [Atty.] Reyes has also carefully examined Annex G of the [Sandiganbayan]
Petition. He asked first for a copy of this document sent to Ambassador Syquia
in Switzerland but he was informed that there is no copy in PCGG records. Afterwards, a
copy of the document was provided by a PCGG insider and this is now marked as Annex
G Again, [Jacobi] had nothing to do with this document marked as Annex G.
[Atty.] Reyes has also carefully examined this document and found that while the
statements therein appear authentic, however, upon closer examination, it seems that the
signature thereunder is not the signature in the original signed by [Chairman Gunigundo]
xxx.
Hence, this Annex G should be likewise withdrawn
xxx
If [respondents], particularly counsel Reyes, had known from the very beginning
that these documents are questionable and not trustworthy, of course, they will never use
them in this case for purposes of recovering Marcos UBS account of $13.2 Billions (sic)
by PCGG for the people of the Philippines.
And whenever there is anything wrong or questionable, [respondents] will not hesitate to
and will immediately inform the [Sandiganbayan] accordingly, as, in fact, they are doing
now, and it is their desire to deal with all candor, fairly and honestly, with [the
Sandiganbayan] and all courts of the land. [italics in the original]
b.

The PCGGs reaction

The attachment, as annexes, of the De Guzman letter to the Sandiganbayan petition and to the

Ombudsman complaint elicited a legal response from the PCGG. Based on the affidavits executed by
Chairman De Guzman, Director Danilo Daniel [26] of the Finance and Administration Department of the
PCGG,[27] and Lilia Yanga,[28] what appears as their signatures and initials at the bottom of the De Guzman
letter actually pertain to their signatures and initials affixed to another letter (dated August 25, 1998) sent

by Chairman De Guzman to the Philippine Ambassador to Switzerland, Tomas Syquia. [29] This August 25,
1998 letter, however, had nothing to do with any contingency agreement with Jacobi and/or Atty. Reyes.
Lourdes Magno,[30] a Records Officer, and Sisa Lopez[31] also executed affidavits stating that the PCGG
has no record of the De Guzman letter. All of these affiants were then PCGG employees.
In a March 17, 1999 resolution (PCGG resolution),[32] the PCGG stated that the De Guzman letter
does not exist in its records.[33] Chairman De Guzman himself denied any participation in the preparation
of this letter, and said:[34]
In connection with Civil Case No. 006 xxx the declaration of Director Danilo R.B. Daniel
that the contents [of the De Guzman letter] is not authentic is hereby confirmed it
appearing that the records of the PCGG bearing on the alleged letter indicates that the
signature of the undersigned and the initials of Dir. Daniel written thereof refers to a letter
addressed to Ambassador Tomas Syquia dated August 25, 1998 and not to the [De
Guzman letter addressed] to Mr. Jacobi. [emphasis added]
The PCGG resolution also stated that a Swiss official [35] already denied the existence of the
US$13.2 billion UBS account claimed by Jacobi. Ultimately, the PCGG resolved to (i) declare Jacobis
arrangement with then Chairman Castro as non-binding and inexistent, and (ii) authorize Chairman Elma
to file appropriate civil and criminal charges against the respondents. [36]
In a March 16, 1999 report of the National Bureau of Investigation (NBI), the latter confirmed
that the De Guzman letter was a falsified document as the questioned signatures and entries therein were
lifted/extracted probably from the original and/or xerox copy [37] of the August 25, 1998 letter addressed to
Ambassador Syquia.
c.

Criminal Complaint
On March 22, 1999, Chairman Elma filed an affidavit-complaint [38] with the Department of

Justice (DOJ), charging the respondents with falsification and with use of falsified document (under
Article 171, paragraph 2 and Article 172, paragraphs. 1 and 3 of the Revised Penal Code). The petitioners
attached to the complaint the NBI report and the affidavits of the PCGG employees. [39]
On April 5, 1999,[40] Atty. Reyes and the AGLP filed a criminal complaint with the Office of the
Ombudsman against Director Daniel (Daniel Complaint) for his alleged traitorous mission for [UBS] and
[the] Marcoses against the interest of the Philippine government. [41] The complaint stated the following
particulars surrounding the Gunigundo letter and the De Guzman letter:

Atty. Reyes also informed [Dir. Daniel] that [Atty. Reyes] requested [the] PCGG
record section for a copy of [the Gunigundo letter] but he was told they had no copy in
their records.
And regarding the missing [De Guzman] letter, the statement in the affidavits of
[the PCGG employees] that there is neither a copy of Chairman de Guzmans letter is not
surprising and confirms [that] important documents are usually missing.
xxx
Further, about middle of September, 1998, Atty. Reyes again visited [Dir. Daniel]
xxx and xxx inquired about [the] Gunigundo letter and the [De Guzman] letter to Reiner
Jacobi [which] merely restated what former PCGG Chairman David Castro committed to
Reiner Jacobi. The PCGG record section said it has no copy. And xxx [Dir. Daniel] said
that he will check his records and give copies if available in his file.
Some days thereafter, again [Atty. Reyes] visited [Dir.] Daniel and he gave me
xerox copy of [the] Gunigundo letter (marked Annex G [of the Sandiganbayan] Petition)
xxx and [Chairman] De Guzmans letter (marked Annex E [of the Sandiganbayan]
Petition...
I never knew then that xxx [Dir.] Daniel has been working for the Marcoses and
UBS in conspiracy with Swiss Trojan Horse Martin Kurer

against the Philippine government. And I learned about it only recently. Hence, before I
did not bother to check the trustworthiness of these documents which he gave me and
which I believed all along to be authentic until my attention was called by negative press
reports on this [De Guzman letter].
But, on the very day I read negative press reports on the authenticity of
[Chairman] De Guzmans letter xxx, I realized that the two documents (Gunigundos letter
of June 24th and De Guzmans letter of Aug. 27th) given to me by [Dir.] Daniel must have
been falsified. xxx
Accordingly, on the same day, Atty. Reyes formally withdrew these two
documents marked Annexes E and G of the PETITION in Sandiganbayan Case No. 006
xxx from the record of the case.[42]
Atty. Reyes imputed the falsification to Director Daniel and claimed good faith in annexing the De
Guzman letter to the Sandiganbayan petition; thus [Dir. Daniel] had the means and opportunity to create the [De Guzman letter] which confirmed
PCGGs contingency fee agreement with Jacobi. [Dir.] Daniel had initialed the letter
dated August 25, 1998. It has subsequently been discovered by the NBI that the
signatures and initialing of the genuine letter dated 25 August 1998 have been transposed
onto the forged [De Guzman] letter.

Because [Dir.] Daniel had access to the letter dated 25 August 1998, he was in the best position to
forge the [De Guzman] letter. The NBI has stated that the [De Guzman] letter was a very
crude forgery. Indeed, it is now clear that this was such a crude forgery that it was
designed to be discovered. Likewise, [Dir.] Daniel had access to Gunigundos letter
of June 19, 1996, hence, he was also in the best position to forge said [Gunigundo] letter
of June 24, 1998 which is also a crude forgery.
xxxx
In contrast, Jacobi and Reyes have no motive in creating a forged contingency fee agreement
because Jacobi already has a binding agreement with the Philippine government. Indeed,
their subsequent conduct contradicts any suggestion of guilty knowledge. In good faith,
they attached the [De Guzman letter] in their Petition filed against Chairman Elma and
the PCGG with the Sandiganbayan wherein recovery of $13.2 Billion from UBS is the
main issue. It is ludicrous to suggest that Jacobi and Reyes would create a crude forgery
and then produce it in contentious court proceedings when such a forgery is unnecessary
to their case and is easily discoverable. Verily, the obvious forger is [Dir.] Daniel of the
PCGG.[43]

Atty. Reyes filed his counter-affidavit, [44] adopting the explanation and allegations contained in
his Urgent Manifestation and in the Daniel Complaint in pleading for the dismissal of the criminal case.
For his part, Jacobi, through Atty. Cynthia Pealosa, denied any participation in the falsification of
the De Guzman letter. He explained:
8. I was informed by [Atty. Reyes] at the time that I received a copy of [the De
Guzman letter] that that letter had been given to [him] by [Dir.] Daniel. The obvious
forger is no other than PCGG insider [Dir.] Daniel xxx. [45]

Jacobi added that he and Atty. Reyes have no reason or motive to forge the letter since he already had an
existing contingency fee agreement with the PCGG/Philippine government. Jacobi attached an affidavit
of Chairman Castro confirming the veracity of the PCGG letters.[46] Jacobi stated that the petitioners
complaint ignored his work history with the PCGG and the consistency of his conduct with the agreement
he entered into with the Philippine government.
Chairman Elma and the PCGG countered that the respondents withdrawal of the falsified letter cannot
extinguish the offenses already committed. The petitioners refuted the respondents allegation that
Director Daniel was the source of the De Guzman letter per Director Daniels affidavit, to wit:

I am not in a position to give [Atty. Reyes] the falsified [De Guzman] letter xxx to Reiner
Jacobi as I do not have a copy of said letter.
I strongly dispute Jacobis statement that the obvious forger is no other that (sic) the
PCGG insider Danilo Daniel who furnished Attorney Crispin T. Reyes the letter in
question. This is absolutely false and baseless. As I have stated above, I had no
participation at all in this spurious letter. If I participated in this proceeding, why do I
need to falsify it. Why not just give them a genuine copy of the letter. [47] (underlining
added)
d.

The DOJs initial finding: existence of probable cause

In a June 25, 1999 resolution (first resolution), Senior State Prosecutor Jude Romano found probable
cause against the respondents on the basis of two legal presumptions - that (i) the possessor and user of a
falsified document is the forger; and (ii) whoever stands to benefit from the forgery is the author thereof which the respondents failed to overthrow. Thus, he recommended the filing of the corresponding
information whose dispositive portion stated;[48] thus WHEREFORE, premises considered, it is respectfully recommended that informations
for Falsification and Use of Falsified Documents under Article 172 (1) in relation to
Article 171(2) and Article 172 par. 3 of the Revised Penal Code, respectively, be filed
against respondents xxx and another information for Use of Falsified Document under
Article 172 par. 3 xxx be filed against [Atty. Reyes].

Prosecutor Romano rejected Jacobis claim (that he had nothing to do with the forged letter or with its
attachment as annex to the Sandiganbayan petition), on the ground that the act of Atty. Reyes, as Jacobis
counsel in the Sandiganbayan petition, bound him as client.[49]
Atty. Reyes seasonably moved for reconsideration of the first resolution,[50] alleging that neither of the
presumptions relied upon by Prosecutor Romano applies. [51] Jacobi, through Atty. Pealosa, received his
copy of the first resolution on June 30, 1999.[52]
d1. The procedural complications.
On July 13, 1999,[53] the Padilla, Jimenez, Kintanar and Asuncion law firm (Padilla law firm)
filed its Entry of Appearance with Omnibus Motion [54] for Jacobi, requesting for additional time to file an
appropriate pleading.[55] The Entry of Appearance attached the June 29, 1999 letter of Jacobi to Atty.
Alexander Padilla (Padilla letter) of the Padilla law firm, retaining the latter as his attorney to deal with
the DOJ.[56] The Padilla letter stated that Jacobi has attached a copy of his June 29, 1999 letter to Atty.

Pealosa (Pealosa letter). Jacobi did not state the contents of the Pealosa letter and neither was a copy
of the Pealosa letter actually attached to the Entry of Appearance.
On July 15, 1999 - the last day to avail of a remedy from the first resolution - Jacobi, through
Atty. Pealosa, filed an unverified petition for review[57] with the DOJ Secretary. With this
development, the petitioners opposed the Padilla law firms earlier request for additional period (to file
appropriate pleading).[58] The petitioners opposition notwithstanding, Prosecutor Romano granted the
Padilla law firms requests in the interest of justice in a July 15, 1999 order.[59] Accordingly, on July 29,
1999,[60] Jacobi (through the Padilla law firm) moved for the reconsideration of the first
resolution (first MR).[61]
Meanwhile, in a July 19, 1999 manifestation, Jacobi, through the Padilla law firm, stated that
only [the Padilla law firm is] authorized to represent [Jacobi] and that any and all other pleadings and
documentations filed or submitted by any other person and counsel, purportedly in and for his behalf, are
manifestly not authorized.[62]
In a January 25, 2000 order (second resolution), Prosecutor Romano resolved[63] to deny Jacobis first
MR, reasoning as follows:
Records show that on July 13, 1999, [Atty. Padilla] filed an Entry of Appearance with Omnibus
Motion manifesting that he is entering his appearance as counsel for [Jacobi]. xxx
Subsequently, on July 29, 1999, Atty. Padilla filed a Motion for Reconsideration.
A perusal of the records however reveal[s] that a Petition for Review was filed before the
Secretary of Justice by Atty. Cynthia Pealosa in behalf of [Jacobi] on July 15, 1999. It
further appears that no withdrawal of appearance as counsel or a withdrawal of the
Petition was ever filed by said counsel. Thus, Atty. Pealosa remains to be a counsel on
record of [Jacobi] with Atty. Padilla as co-counsel.
Considering that the respondent has filed a Petition for Review of the [first
resolution] that is the subject of the Motion for Reconsideration, the undersigned in
deference to the Secretary of Justice is constrained to deny the Motion for
Reconsideration. [emphases added]
Earlier however (or on January 10, 2000), then Secretary of Justice Serafin Cuevas also
resolved to dismiss Jacobis unverified petition for review (Cuevas resolution) for Jacobis failure to
submit a verification of the petition signed by [Jacobi] himself. [64]

On March 7, 2000,[65] the Sanidad Abaya Te Viterbo Enriquez and Tan law firm (Sanidad law
firm) filed an Entry of Appearance as sole and principal counsel [66] for Jacobi. The Sanidad law firm
attached two facsimile letters of Jacobi: one is dated March 3, 2000, [67] addressed to Prosecutor
Romano/Chief State Prosecutor Jovencito Zuo; and the other is dated June 29, 1999 [68] (which is actually
the Pealosa letter, supposedly attached to the Padilla law firms Entry of Appearance) addressed to Atty.
Pealosa. Both letters attest to the lack of authority of Atty. Pealosa to represent and take action [for
Jacobi] as of [June 29, 1999][69] or before the unverified petition for review was filed.These facsimile
letters do not bear the actual date of their transmission.[70]
The Sanidad law firm moved for the reconsideration [71] (second MR) of the second resolution, arguing that
Prosecutor Romano erred in refusing to recognize that Atty. Pealosahad already been validly discharged
upon the subsequent unqualified appearance of the Padilla law firm well before the unverified petition for
review was filed. It cites in support the Padilla law firms July 19, 1999 Manifestation.[72]
In a March 6, 2001 resolution (third resolution), Chief State Prosecutor Jovencito Zuo (i) approved the
recommendation of Prosecutor Romano to grant Jacobis second MR andAtty. Reyes pending motion
for reconsideration, and (ii) dismissed the complaint against the respondents. [73] Since both the second
resolution (denying Jacobis first MR) and the Cuevas resolution (denying Jacobis unverified petition for
review) were not based on the merits, the prosecutors considered Jacobis second MR in the interest of
justice. The prosecutors observed:
[The De Guzman letter] merely confirms the agreement between the PCGG and Jacobis
group. The [De Guzman letter] was annexed to [the Sandiganbayan petition] [which]
specifically prayed for the revocation of the re-appointment of Swiss lawyers and
representatives in Switzerland x x x and to continue, push through and follow up the
previous government efforts and take such appropriate actions called for. xxx
As can be gleaned from the above, the subject letter is not necessary for the
successful resolution of the case. As explained, its annexation to the petition is a
surplusage for even without it, the action was sufficient. There is no logical reason for the
respondents to falsify the subject letter knowing fully well that no benefit would accrue
in their favor. It would be different if the action filed was for the collection of the
stipulated 10% fee. The subject letter then becomes very material as it serves as proof of
their right to the fees.[74]
In the meantime, Atty. Pealosa withdrew[75] as Jacobis counsel. She attached to her Notice of Withdrawal
her letters-explanation to Jacobi, disproving her alleged lack of authority to file the unverified petition for
review. In one of her letters, Atty. Pealosa explained:

You [referring to Jacobi] know that despite the [Pealosa letter] (which was
faxed to me after I received a copy of the adverse DOJ Resolution) You repeatedly
requested me to proceed and to immediately inform [Atty. Padilla] that it was [you who
gave] me authority to prepare/submit the necessary papers. I then informed [Atty. Padilla]
of your decision. Nevertheless I told [Atty. Padilla that] I could withdraw from [the] case
so he can enter his appearance and make the necessary legal moves. [Atty. Padilla] said
[that] he did not know about your DOJ case and that he was busy and that I just go ahead
with your request that I proceed with the preparation/submission of the papers.
xxxx
On July 15, 1999 which was the last day for the filing of the petition [for
review with the DOJ], I asked you again if we were to proceed and your decision
[was] that I file it. Even Dr. David Chaikin, your lawyer, who was with you at that time
and whom you consulted, advised me to proceed. So, the petition was filed. [76] (Emphases
added)

The petitioners moved for reconsideration [77] of the third resolution but its motion was denied in
a January 9, 2002 resolution.[78] Prosecutors Romano and Zuo rejected the petitioners argument that the
dismissal of Atty. Pealosas petition for review bars a reconsideration of the second resolution.
It should be noted that the [third resolution] treats, not only of [Jacobis] motion
for reconsideration, but likewise that of [Atty. Reyes] which was [seasonably] filed. xxx
Therefore, insofar as the Motion for Reconsideration filed by [Atty. Reyes] is
concerned, the same is still pending and had to be resolved. It is of record that [Atty.
Reyes] never filed a petition for review of the [first resolution]. Hence the [Cuevas
petition] dismissing on a mere technicality the Petition for review filed by Atty. Pealosa,
alleged counsel [of Jacobi], did not affect the pending Motion for Reconsideration filed
by [Atty. Reyes] and did not bar the undersigned from acting thereon.
Insofar as the Motion for Reconsideration filed by [Jacobi] is concerned, the
same had to be resolved principally in the interest of justice xxx.
This case involves the same facts and the same issues for both [Jacobi and
Atty. Reyes] such that injustice could occur should there be two different decisions.
xxx
xxx [the] dismissal [of the petition for review] never affected the Motion for
reconsideration filed by [Atty. Reyes] then pending with the undersigned for resolution.
Certainly, the resolution of this motion was within the jurisdiction/authority of the
undersigned and the Chief State Prosecutor whose resolution is subject of
reconsideration. xxx[79] [emphasis supplied]
e.

The DOJs present finding: No probable cause

On April 29, 2002, the PCGG filed a petition for review [80] with the DOJ Secretary.[81] Usec. Gutierrez,
acting for the Secretary of Justice Hernando Perez, denied the petition for review on the ground that

no prima facie case exists against the respondents. With the denial [82] of the petitioners motion for
reconsideration,[83] the petitioners went directly to this Court on a petition for certiorari.
THE PETITIONERS POSITION
The petitioners claim that Usec. Gutierrez gravely abused her discretion when she sustained the
impropriety of (i) Jacobis simultaneous resort to two different remedies filing a petition for review and a
motion for reconsideration through two different counsels [84] and (ii) filing a second motion for
reconsideration of an adverse resolution through another counsel. [85] Jacobis first and second MRs were
purposely devised to make it appear that Atty. Pealosa was not authorized to file the unverified petition
for review.[86]
The petitioners also claim that the alleged termination of Atty. Pealosas services surfaced only
when - as late as March 2000 - the Sanidad law firm attached to Jacobis second MR a copy of the Pealosa
letter. The petitioners argue that nothing in the records of the case would show that Jacobi terminated
Atty. Pealosas services at any time beforeshe filed the unverified petition for review. The Padilla law
firms (i) Entry of Appearance and (ii) July 19, 1999 manifestation, as well as the Padilla letter attached to
these, are silent about the alleged termination of Atty. Pealosa. These documents do not contain the
Pealosa letter which supposedly evidences Jacobis termination of Atty. Pealosas services.[87] At any rate,
the Padilla and the Pealosa letters are of dubious authenticity because they do not contain the actual date
of transmittal by Jacobi to their addressees, as would normally appear at the top edge of a faxed
document.[88]
The petitioners assert that Atty. Pealosa was Jacobis counsel at the time she filed the unverified
petition for review, citing Prosecutor Romanos observation in the second resolution and Atty. Pealosas
letters-explanation, attached to her Notice of Withdrawal. [89] The petitioners likewise claim that since Atty.
Pealosa remained Jacobis counsel at the time she filed the petition for review, then the filing of the first
and second MRs by the Padilla law firm and by the Sanidad law firm, respectively, is highly improper.
The petitioners add that Usec. Gutierrez gravely abused her discretion when she sustained
Prosecutor Romano and Prosecutor Zuos grant of Jacobis second MR, which effectively (albeit without
authority) overturned the Cuevas resolution, [90] instead of maintaining respect to the appellate authority of
then Secretary Cuevas.

On the issue of probable cause, the petitioners reiterate the findings in the first resolution that the
respondents defense of lack of knowledge [of the forgery] is self-serving and is better ventilated in a full
blown trial.[91] Relying on the presumption that the holder of a forged document is presumed to be the
forger thereof, the petitioners assert that the respondents failed to rebut this presumption with credible
evidence. Since the Sandiganbayan petition seeks to compel the petitioners (as respondents in Civil Case
No. 006) to recover the UBS account, the Sandiganbayan petition was actually an action to compel
recognition of the respondents alleged 10% finders fee as confirmed in the De Guzman letter. [92]
Citing Choa v. Judge Chiongson,[93] the petitioners add that the withdrawal of the` De Guzman letter from
the Sandiganbayan petition and the Ombudsman complaint cannot negate the criminal liability that the
respondents had already incurred. Criminal liability for knowingly introducing a falsified document in
court is incurred once the document is submitted to the court through its attachment to the complaint.
[94]

The respondents cannot likewise claim good faith in withdrawing the De Guzman letter since the

withdrawal was made after Chairman De Guzman denied any participation in the forged letter and after
the NBI confirmed the falsification.[95]
THE RESPONDENTS POSITION
The respondents question the propriety of the petitioners resort to a certiorari petition instead of a
petition for review under Rule 43;[96] they posit that even assuming the remedy of certiorari is proper, the
petition is insufficient in form and substance due to the petitioners failure to (i) implead the DOJ in their
petition[97] and (ii) to observe the doctrine of hierarchy of courts. [98]
Contrary to the petitioners remonstration, the assailed resolutions of Usec. Gutierrez were
actually issued for Secretary of Justice Hernando Perez, and therefore, Usec. Gutierrez did not reverse the
Cuevas resolution.[99] The respondents assert that the petitioners cannot compel the prosecutor to proceed
with the case after finding that no probable cause exists against the respondents since the determination of
probable cause involves an exercise of discretion. [100]
The respondents add that the petitioners failure to present the original of the allegedly forged
document is fatal to their accusations of forgery. At any rate, the presumption of authorship, relied upon
by the petitioners, is inapplicable to and rebutted by Jacobi and Atty. Reyes, respectively: first, the
presumption cannot apply to Jacobi, who was never in possession of the De Guzman letter; he had no
participation in the preparation of the Sandiganbayan petition and he did not even verify it; and second,
Atty. Reyes sufficiently explained how he came into possession of the De Guzman letter.[101]

ISSUES

1.

Whether certiorari under Rule 65 is the proper remedy to question the DOJs determination
of probable cause.
a.

2.

If it is, where should the petition be filed.

Whether the DOJ committed grave abuse of discretion.

a.

In effectively allowing Jacobi to (i) simultaneously avail of the remedy of a petition

for review and a motion for reconsideration, and (ii) file a second motion for
reconsideration.

b.

In finding that no probable cause for falsification and use of falsified document
exists against the respondents?
OUR RULING

The petition lacks merit.

Before going into the substance of the petition, we shall first resolve the procedural questions the
respondents raised.

I.

Procedural aspects
a.

Rule 65 is the proper remedy to assail the

DOJs determination of the presence or absence
of probable cause

The respondents claim that a petition for review under Rule 43 is the proper remedy in questioning the
assailed DOJ resolutions.

The respondents are mistaken.

By weighing the evidence submitted by the parties in a preliminary investigation and by making an
independent assessment thereof, an investigating prosecutor is, to that extent, performing functions of a
quasi-judicial nature in the conduct of a preliminary investigation. However, since he does not make a
determination of the rights of any party in the proceeding, or pronounce the respondents guilt or
innocence (thus limiting his action to the determination of probable cause to file an information in court),
[102]

an investigating prosecutors function still lacks the element of adjudication [103] essential to an appeal

under Rule 43.

Additionally, there is a compelling reason to conclude that the DOJs exclusion from the enumeration of
quasi-judicial agencies in Rule 43 of the Rules of Court is deliberate. InOrosa v. Roa,[104] we observed:

There is compelling reason to believe, however, that the exclusion of the DOJ
from the list is deliberate, being in consonance with the constitutional power of control
lodged in the President over executive departments, bureaus and offices. This power of
control, which even Congress cannot limit, let alone withdraw, means the power of the
Chief Executive to review, alter, modify, nullify, or set aside what a subordinate, e.g.,
members of the Cabinet and heads of line agencies, had done in the performance of their
duties and to substitute the judgment of the former for that of the latter.
Being thus under the control of the President, the Secretary of Justice, or, to
be precise, his decision is subject to review of the former. In fine, recourse from the
decision of the Secretary of Justice should be to the President, instead of the CA,
under the established principle of exhaustion of administrative remedies. x x x.
Notably, Section 1 x x x of Rule 43 includes the Office of the President in the agencies
named therein, thereby accentuating the fact that appeals from rulings of department
heads must first be taken to and resolved by that office before any appellate recourse may
be resorted to. [citations omitted, emphasis ours]

However, Memorandum Circular No. 58 [105] of the Office of the President bars an appeal from the
decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal
cases via a petition for review, except for those involving offenses punishable by reclusion perpetua to
death.[106] Therefore, a party aggrieved by the DOJs resolution - affirming or reversing the finding of the
investigating prosecutor in a preliminary investigation involving an offense not punishable by reclusion
perpetua to death - cannot appeal to the Office of the President and is left without any plain, speedy and

adequate remedy in the ordinary course of the law. This leaves a certiorari petition as the only remedial
avenue left.[107] However, the petitioner must allege and show that the DOJ acted with grave abuse of
discretion in granting or denying the petition for review.
We also reject the respondents allegation that the present petition suffers from a fatal procedural defect for
failure to implead the DOJ (or its appropriate official) as an indispensable party.
Unlike a Rule 45 petition, one filed under Rule 65 petition requires the petitioner to implead as
public respondent the official or agency[108] whose exercise of a judicial or quasi-judicial function is
allegedly tainted with grave abuse of discretion. [109] Contrary to the respondents assertion, the petition
for certiorari filed by the petitioners with the Court impleaded Usec. Gutierrez, who, as then Justice
Undersecretary, issued the assailed resolutions for the Secretary of Justice. While the DOJ did not
formally enter its appearance in this case, or file any comment or memoranda, the records show that the
Court issued resolutions, addressed to the DOJ as a party, to submit the appropriate responsive pleadings.
[110]

As an extraordinary remedy, Rule 65 of the Rules of Court does not require that summons be issued to

the respondent; the service upon him of an order to file its Comment or Memorandum is sufficient. [111]
b. The doctrine of hierarchy of courts not inflexible

Conceding the remedial propriety of the present petition, the respondents nevertheless assert that under
the doctrine of hierarchy of courts, the present petition should have been filed with the Court of Appeals
(CA), which has concurrent jurisdiction with the Supreme Court to issue the extra-ordinary writ
of certiorari.
We agree with the respondents.
In Vergara, Sr. v. Judge Suelto,[112] the Court laid down the judicial policy expressly disallowing a
direct recourse to this Court because it is a court of last resort. The Court stressed that [w]here the
issuance of an extraordinary writ is also within the competence of [another court], it [must be in that
court] that the specific action for the writs procurement must be presented. The rationale behind the
policy arises from the necessity of preventing (i) inordinate demands upon the Court's time and attention
which are better devoted to those matters within its exclusive jurisdiction, and (ii) further overcrowding
of the Court's docket.[113]
People v. Cuaresma[114] and subsequent jurisprudence later reaffirmed this policy, stating that a
direct invocation of the Courts original jurisdiction may be allowed only if there are special and

important reasons clearly and specifically set out in the petition or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of our primary
jurisdiction.[115]
In the present case, the petitioners have not advanced any special and important reason or reasons
why direct recourse to this Court should be allowed, considering the availability of a certiorari petition
with the CA; nor do we find exceptional and compelling circumstances in the present petition to apply the
exception to the judicial policy.[116]However, if only to avoid further delay by leniently reading the
petition, and assuming import to, the allegation that the respondents falsified a document that forms part
of the PCGGs official records of its correspondence with a Philippine diplomatic official we deem it of
practical necessity to resolve the case on its merits.[117]
c.

Grave abuse of discretion: procedural aspect of the DOJs

determination of
lack of probable cause

The petitioners argue that since Atty. Pealosa was still Jacobis counsel of record at the time she
filed the unverified petition for review, Jacobi could not disown the act of his counsel by simply availing
of another remedy through another counsel. Consequently, the dismissal of Jacobis unverified petition for
review - albeit on a technical ground - rendered the first resolution as the final determination of the
existence of probable cause against the respondents.
The mere filing of a notice of appearance of a new counsel does not automatically give rise to the
presumption that the present counsel of record has already been substituted or that his authority has been
withdrawn. Therefore, absent a formal withdrawal of appearance filed by Atty. Pealosa, the Padilla law
firm is considered merely as a collaborating counsel and its entry of appearance does remove from Atty.
Pealosa the authority to file, when she did, the petition for review with the DOJ. [118] Even Jacobi impliedly
admitted that Atty. Pealosa was still his counsel at the time she filed the petition for review by not
addressing the issue of her authority to file it and by conveniently choosing to keep silent (thus impliedly
agreeing with) regarding her account of the filing of the petition.
Contrary to the petitioners claim, records bear out that the Padilla law firm had attached the
Pealosa letter to its July 19, 1999 manifestation, showing that Jacobi already terminated Atty. Pealosas
services as of June 29, 1999 (or before the unverified petition for review was filed). However, since this
Manifestation was filed with the DOJ only onJuly 20, 1999,[119] Atty. Pealosas earlier filing of the petition

for review cannot be considered unauthorized. While the filing of this July 19, 1999 manifestation would
have the effect of discharging Atty. Pealosa, [120] it cannot undo her act which was valid and effective at the
time it was done.[121]
All things considered, the factual peculiarities of this case do not lead us to adopt the petitioners position.
Under Department Circular No. 70 of the DOJ, [122] an aggrieved party may appeal the resolution
of the city or provincial prosecutor to the Secretary of Justice upon receipt either of the questioned
resolution or of the denial of a motion for reconsideration of the questioned resolution. Logically, the
filing of a petition for review is deemed a waiver of the more expedient remedy of asking for
reconsideration from the investigating prosecutor.
Notwithstanding the irregularity that would result in availing two remedies in succession,
Prosecutor Romano granted Jacobis request (through the Padilla law firm) for an additional period within
which to file an appropriate pleading, glossing over the petition for review filed on the same date (July
15, 1999) with the Secretary of Justice. Accordingly, Jacobi filed his first MR on July 29, 1999, through
the Padilla law firm.
Upon discovery of Jacobis previously filed petition for review, Prosecutor Romano refused to
entertain Jacobis first MR in deference to the Secretary of Justice. [123](Unfortunately, the then Secretary of
Justice subsequently denied Jacobis petition for review based solely on a procedural defect, i.e., Jacobi
failed to verify the petition).
A significant point that should be appreciated at this juncture is that Atty. Reyes himself had a
validly filed motion for reconsideration since he had been alleged to be not only a lawyer, but a coconspirator of Jacobi in the offenses sought to be charged. It must be considered, too, that the petitioners
accusations against the respondents arose from the same set of disputed (and undisputed) facts whose
resolution, for purposes of determination of probable cause, could not be considered independently of one
another. The prosecutors apparently forgot about Atty. Reyes motion for reconsideration when they
recognized the petition for review Jacobi earlier filed and in ruling on Jacobis first MR.
From this perspective, Prosecutor Zuos March 6, 2001 ruling on Jacobis second MR and on Atty.
Reyes first MR cannot be appreciated as grave abuse of discretion. While it seemingly violated

established rules of procedure, it provided ample justification therefor the avoidance of possibility of two
conflicting rulings on two motions treating of the same inseparable subject matter.
We remind the petitioners that when the technical rules of procedure desert its proper office as an
aid to justice and becomes a great hindrance to the attainment of justice, its invocation deserves the least
consideration from this Court. Rules of procedure must yield, when proper and under justifiable causes
and/or circumstances (as what has been done in the present case), in the interest of substantial justice.
In these lights, we cannot likewise agree with the petitioners remonstrations that Usec. Gutierrez
improperly overruled the resolution of former Secretary Cuevas. As the respondents pointedly countered,
the assailed resolutions were issued by Usec. Gutierrez for the Secretary of Justice, who at the time was
no longer Secretary Cuevas.[124]Absent any allegation and proof of any acquired vested right, the
discretion exercised by a former alter-ego cannot tie the hands of his successor in office since cabinet
secretaries are mere projections of the Chief Executive himself. [125]

With the procedural issues cleared, we now resolve the ultimate issue of whether probable cause
exists to charge the respondents with falsification and use of falsified documents.
II.

Substantive aspect
a.

Determination of probable cause, an executive

function
The necessary component of the Executives power to faithfully execute the laws of the land is the

States self-preserving power to prosecute violators of its penal laws. This responsibility is primarily
lodged with the DOJ, as the principal law agency of the government. [126] The prosecutor has the
discretionary authority to determine whether facts and circumstances exist meriting reasonable belief that
a person has committed a crime. The question of whether or not to dismiss a criminal complaint is
necessarily dependent on the sound discretion of the investigating prosecutor and, ultimately, of the
Secretary (or Undersecretary acting for the Secretary) of Justice. [127] Who to charge with what crime or
none at all is basically the prosecutors call.
Accordingly, the Court has consistently adopted the policy of non-interference in the conduct of
preliminary investigations, and to leave the investigating prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient evidence to establish probable cause. [128] Courts cannot order

the prosecution of one against whom the prosecutor has not found a prima facie case; as a rule, courts,
too, cannot substitute their own judgment for that of the Executive. [129]
In fact, the prosecutor may err or may even abuse the discretion lodged in him by law. This error
or abuse alone, however, does not render his act amenable to correction and annulment by the
extraordinary remedy of certiorari. To justify judicial intrusion into what is fundamentally the domain of
the Executive,[130] the petitioner must clearly show that the prosecutor gravely abused his discretion
amounting to lack or excess of jurisdiction in making his determination and in arriving at the conclusion
he reached. This requires the petitioner to establish that the prosecutor exercised his power in an arbitrary
and despotic manner by reason of passion or personal hostility; and it must be so patent and gross as to
amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of
law,[131] before judicial relief from a discretionary prosecutorial action may be obtained. All these, the
petitioner failed to establish.
b.

Lack of probable cause for falsification

For purposes of filing an information in court, probable cause refers to facts and circumstances

sufficient to engender a well-founded belief that a crime has been committed and that the respondents
probably committed it. To guide the prosecutors determination, a finding of probable cause needs only to
rest on evidence showing that, more likely than not, a crime has been committed and that it was
committed by the accused; the quantum of proof to establish its existence is less than the evidence that
would justify conviction, but it demands more than bare suspicion. [132]
No definitive basis to determine probable cause has been established, except to consider the
attendant facts and circumstances according to the prosecutors best lights. [133]No law or rule states that
probable cause requires a specific kind of evidence. No formula or fixed rule for its determination
exists. Probable cause is determined in the light of conditions obtaining in a given situation. [134] In going
through the process, the prosecutor should carefully calibrate the issues of facts presented to him to the
end that his finding would always be consistent with the clear dictates of reason. [135]
In the present case, the petitioners rely on the jurisprudential presumption that a holder of a
forged document is himself the forger, and should be charged under Article 171, paragraph 2 [136] and
Article 172, paragraphs 1 and 3[137] of the Revised Penal Code.

I.

The presumptions roots in

jurisprudence

In the 1906 case of U.S. v. Castillo,[138] the Court laid down the rule that the utterance or use of a
forged instrument, when unexplained, is strong evidence tending to establish that the user himself (or
herself) either forged the instrument or caused it to be forged. In this case, the accused merely denied ever
presenting the forged check to the complainant or receiving the amount it represented; the Court found no
merit in these denials. In People v. De Lara[139] (a 1924 case), the Court again applied the presumption
after finding the explanation of the accused on how he came into possession of checks that were
subsequently encashed to be unusual and unreasonable as to carry conviction.[140]
In People v. Domingo (1926),[141] the Court applied the presumption because a few days after the
certificate of title (over a property) was loaned to the accused, a forged deed of sale covering the property
was executed by two alleged vendors. The Court ruled that the failure of the accused to explain what she
did with the certificate of title loaned to her could only lead to the inference that she placed the certificate
of title in the hands of her confederates as without the certificate, the forgery could not have been
accomplished.
In People v. Astudillo (1934),[142] the Court clarified[143] that for the presumption to apply, the use
of the forged document must be accompanied by these circumstances: the use is so closely connected in
time with the forgery,[144] or the user may be proved to have the capacity to undertake the forgery, or such
close connection with the forgers to create a reasonable link. These additional circumstances have been
loosely applied in subsequent cases.
In Alarcon v. Court of Appeals (1967),[145] the Court applied the presumption after considering the
patent irregularity in the transaction[146] and the extraordinary interest of the accused in the property
covered by the forged document/s in holding that no reasonable and fair[-]minded man would say that the
accused had no knowledge of the falsification. Sarep v. Sandiganbayan (1989 case),[147] gave occasion for
the ruling that since the accused was the only person who stood to benefit by the falsification of the
document found in his possession, the presumption of authorship of the falsification applies in the
absence of contrary convincing proof by the accused.[148]
In the more recent (1992) Caubang v. People,[149] the accused - who claimed to have the authority
to transact (in behalf of an entity) with a government agency in Manila - attempted to overthrow the

presumption of authorship against him by alleging intervening circumstances from the time he arrived in
Manila until the transaction with the government agency was made. The accused claimed the he did not
carry the forged document when he arrived in Manila and that third persons (including a fixer) actually
transacted with the government. Allegedly, these claims disproved that he had any knowledge or inference
in the making of the submitted forged document. Rejecting this claim, the Court ruled that:
[U]tilizing a fixer as part of the scenario becomes a convenient ploy to divert the mind of
the court from the more plausible inference that the accused-petitioner engineered the
spurious [document].
xxxx
Even if the allegation that some other person [did the transaction] was true, the
accused-petitioner would still be subjected to the same conclusion.
xxxx
Having been the one responsible for the filing of the registration papers,
including the means he felt necessary to accomplish the registration, the accused must
likewise be accountable therefor. As the authorized representative, he is deemed to have
been the one in custody or possession, or at least the one who has gotten hold even for a
short while, of the papers which included the [falsified document]. That he knew of the
execution of the statement is a possibility not too difficult to imagine under the
circumstances.
xxxx
The [submission] of the previously inexistent document [with the government]
subjects the accused-petitioner to the inference that he used it as part of the registration
papers. In the absence of a credible and satisfactory explanation of how the document
came into being and then filed with the [government agency], the accused is presumed to
be the forger [.][150] (italics supplied)

In Dava v. People (1991),[151] involving an accused who misrepresented to his friend that he had
no drivers license and thereafter induced his friend to deal with fixers so that he could have a drivers
license, the Court ruled that the patent irregularity [152] that attended the procurement of the license cannot
escape the conclusion that the accused knew that the license he obtained was fake and that he acted as a
principal by inducement in the falsification of the license.
The above case law instructs us that if a person had in his possession (actual or constructive) a
falsified document and made use of it, taking advantage of it and/or profiting from such use,
the presumption that he authored the falsification also applies.[153]

These cited cases, however, already involve a determination of the guilt or innocence of an
accused, requiring the application of the rigid standard of moral certainty. In a preliminary investigation
that merely inquires into the probability of guilt of a respondent, no reason exists why the same
presumption cannot apply mutatis mutandis, taking into account the different level of certainty demanded.
Where

the

evidence

before

the

investigating

prosecutor

jibes

with

the

factual

premises[154] necessary for the application of the presumption of authorship, a prima facie[155] case for
falsification under Article 171 of the Revised Penal Code is created. Correspondingly, the legal
presumption gives rise to the necessity for the presentation of contrary evidence by the party (against
whom the presumption applies) to overcome the prima facie case established;[156] otherwise, the existence
of probable cause cannot be disputed.[157]
Based on these standards, the twin-issue we confront is whether the presumption applies and
whether the facts giving rise to it have been adequately rebutted by the respondents.
ii.

The legal presumption does not apply to Jacobi

Jacobi argues that the presumption of authorship does not apply to him because he never became
a possessor or holder of the De Guzman letter.
The De Guzman letter shows that Jacobi was its intended addressee although it was sent in care
of Jacobis then counsel, Atty. Reyes. Unlike the PCGG letters, whose authenticity the petitioners do not
dispute, the De Guzman letter recognized Atty. Reyes as Jacobis counsel in his dealing with the PCGG.
The petitioners do not dispute, too, Atty. Reyes representation to the PCGG as Jacobis counsel in several
correspondences he had sent, confirming that he had been acting in such capacity.
The relation of an attorney and a client is in many respects one of agency and the general rules of
ordinary agency apply. The extent of authority of a lawyer, when acting on behalf of his client outside of
court, is measured by the same test applied to an ordinary agent. [158] Accordingly, even if we go by Atty.
Reyes account of how the De Guzman letter surfaced, Jacobi, at least, had constructive possession of the
De Guzman letter. Being a mere extension of the personality of the principal (client), the agents (lawyers)
possession is considered that of the principals. [159]

However, possession of the falsified letter is not enough to trigger the application of the
presumption of authorship; the use of the document [160] and the existence of any of the circumstances
previously discussed is still necessary.
In the present case, Jacobis use of the De Guzman letter is placed in doubt considering (i) that he
was not in the country when the Sandiganbayan petition - containing the De Guzman letter - was filed,
and (ii) the absence of his signature in the Sandiganbayan petition and in its verification. There is also a
seven-month interval between the date of the De Guzman letter and the filing of the Sandiganbayan
petition. Cognizant of these facts, the petitioners theorized that Jacobi and Atty. Reyes acted in conspiracy
in coming up with a falsified De Guzman letter.[161] The petitioners claim that the attachment of the De
Guzman letter to the respondents Sandiganbayan petition was precisely aimed at compelling the PCGG to
recognize Jacobis (and his groups) 10% contingent fee arrangement with the PCGG and, ultimately,
recovering it in the same action.
The petitioners claim fails to persuade us. The petitioners ignore the professional relationship
existing between Jacobi and Atty. Reyes at the time the Sandiganbayan petition was filed. The existence
of this relationship necessarily calls for a different appreciation of the facts established during the
preliminary investigation than it would if no such relationship existed. Under Rule 138 [162] of the Rules of
Court, matters of ordinary judicial procedure are within the exclusive authority of the attorney. These
include such questions as what action or pleading to file, what should be the theory of the case, and how
the claim (or defense) may be proved and those affecting the sufficiency, relevancy and materiality of
certain pieces of evidence.[163] The annexation of the De Guzman letter in the Sandiganbayan petition and
the Ombudsman complaint falls within these matters. Even Atty. Reyes himself explained that Jacobi had
no participation in the preparation of the Sandiganbayan petition, much less in the attachment as annex of
the De Guzman letter.[164]
Without determining the validity of Jacobis supposed arrangement with the PCGG, a reading of the
Sandiganbayan petition does not support the petitioners theory of conspiracy. In filing the Sandiganbayan
petition, the respondents seek to compel the petitioners to perform their duty to recover the ill-gotten
wealth of the Marcoses. With or without the agreement, the performance of this duty is a tasked imposed
by law on the PCGG; the performance of this duty is what the Sandiganbayan petition speaks of in plain
terms.

Then, too, the DOJ found nothing to support the petitioners allegation of conspiracy or of
inducement on Jacobis part. Likewise, the Court cannot find any reason why the respondents should file
the Sandiganbayan petition to compel the petitioners to recognize their alleged contingent fee
arrangement. To begin with, the records do not show that the petitioners ever disputed the validity of this
arrangement - as evidenced likewise by the PCGG letters, which [165] are of similar import as the De
Guzman letter and whoseauthenticity the petitioners impliedly admitted at the time the respondents filed
the Sandiganbayan petition.
Yet again, the existence of several letters and reports made by the respondents to the PCGG,
regarding the UBS account and the respondents activities in connection therewith, shows that the PCGG
was at least aware of the respondents efforts to assist in the recovery efforts of the government, in general,
and of the PCGG, in particular. Therefore, forging a letter that would simply be evidence of an implied
agreement for those services hardly makes any sense. [166]
Considering the inapplicability of the presumption of authorship and the dearth of evidence to
support the allegation of conspiracy, much less of evidence directly imputing the forgery of the De
Guzman letter to Jacobi, we find no grave abuse of discretion on the part of the DOJ in absolving him.
iii.

The presumption in forgery was sufficiently

explained by Atty. Reyes

Atty. Reyes does not seriously dispute the application of the presumption of authorship [167] as to
him since he was in possession, and made use, of the forged De Guzman letter, but offers an explanation
on the circumstances of such possession and use. On the other hand, the petitioners dispute the adequacy
of his explanation and impute grave abuse of discretion on the part of Usec. Gutierrez for surmising that
the De Guzman letter must have been doctored in the PCGG. [168]
What constitutes satisfactory explanation from the possessor and user of a forged document must
be adjudged on a case to case basis, consistent with the twin-purposes of a preliminary
investigation[169] - viz: first, to protect the State from having to conduct useless and expensive trials;
and second, to protect the respondent from the inconvenience, expense and burden of defending himself
in a formal trial, unless a competent officer shall have first ascertained the probability of his guilt.
[170]

Since the determination of probable cause lies within the prosecutors discretion, the soundness of the

explanation (to rebut the prima facie case created by the presumption of authorship) is likewise left to the

prosecutors discretion. Unless his determination amounted to a capricious and whimsical exercise of
judgment evidencing a clear case of grave abuse of discretion, courts must defer to the prosecutors
finding.
We do not find grave abuse of discretion in the present case. By capitalizing on Usec. Gutierrezs
assumption that the questioned letter must have been doctored in the PCGG, the petitioners turned a blind
eye to the assumptions factual premise. We quote Usec. Gutierrezs discussion on this point, thus We have perused the NBI report; and our attention is caught by the statement
therein that the typewritten name and signature of FELIX M. DE GUZMAN, the
typewritten entries Chairman, FMG/lai, dol, and the handwritten entries 5c Records, 8/27
were lifted/extracted probably from the original and/or xerox copy from the original of a
typewritten letter addressed to the Hon. Tomas L. Syquia, Philippine Ambassador to
Switzerland dated 25 August 1998.
Since it is the PCGG that has the only copy of Chairman De Guzmans letter
to Ambassador Syquia (except of course the Ambassador) in its files bearing the
same distinguishing entries from where the [De Guzman] letter was lifted/extracted,
we cannot see our way clear how the falsification can be attributed to respondent
Reyes. It is more credible that the questioned letter must have been doctored in the
PCGG, which is the repository of all official communications of former Chairman De
Guzman, and passed to [Atty. Reyes] who accepted the same not knowing its falsity.
[171]
(Emphasis added.)
In short, Usec. Gutierrez simply found Atty. Reyes explanation that the De Guzman letter was handed to
him by Director Daniel consistent with the premise of her assumption and sufficient to disregard the DOJs
previous finding of probable cause.
Additionally, we observe that along with the De Guzman letter, Atty. Reyes also withdrew the
Gunigundo letter from the Sandiganbayan petition because of the questionable authenticity of the
signature it carried. When Atty. Reyes tried to obtain a copy of this letter from the PCGG, he was
informed that the PCGG had no copy of this letter. Interestingly, the absence of a copy of the De Guzman
letter in the PCGGs records was the core of the statements in the affidavits of the PCGG employees,
attached to support the petitioners complaint.[172]
The petitioners place too much reliance

on

the

findings

contained

in the first resolution, blurring their view of the function of a motion for reconsideration. It is precisely
the office of a motion for reconsideration[173] to give an agency making a quasi-judicial determination an
opportunity to correct any error it may have committed through a misapprehension of facts or
misappreciation of the evidence, [174] leading to a reversible conclusion at the administrative level. The
petitioners have not shown that in arriving at the assailed resolutions (which sustained the prosecutors

reversal of the first and second resolutions), Usec. Gutierrez gravely abused her discretion which would
warrant a corrective action from the Court.
c.
Lack of probable cause for knowingly introducing a falsified
document
Neither does probable cause exist against the respondents for the crime of introducing a falsified
document in a judicial proceeding, punished under the last paragraph of Article 172 of the Revised Penal
Code. The accuseds knowledge of the falsity of the document, which he introduced in a judicial
proceeding, is one of the elements [175] of this crime. In the present case, not an iota of evidence was
presented to show the respondents knowledge of the falsity of the De Guzman letter at the time it was
annexed to the Sandiganbayan petition. On this point alone, the petitioners reliance on Choa v. Judge
Chiongson[176] is misplaced.
Given all the extant circumstances of the case, coupled with the immediate withdrawal of the De
Guzman letter, the resulting credit given by Usec. Gutierrez to the respondents defense-explanations must
be respected.
d.

The PCGGs role in the governmental scheme vis--vis the

Courts general policy of non-interference
As a final observation, we draw attention to the fact that the PCGG is a unique legal creature with

a unique mandate. It was created by President Corazon Aquino pursuant to her extraordinary legislative
powers after she declared a revolutionary government. The PCGGs charter, Executive Order (E.O.) No. 1,
was the very first executive order she issued. E.O. No.1 created the PCGG and charged it with the task of
assisting the President in the recovery of all ill-gotten wealth accumulated by former President Marcos,
his relatives and cronies. To accomplish its gigantic task of recovering the plundered wealth of the nation,
[177]

E.O. No. 1 granted the PCGG ample powers and authority.[178]

In no time, the President issued E.O. No. 2,[179] authorizing the PCGG to request and appeal to

foreign governments where the ill-gotten wealth might be found to freeze them and otherwise prevent
their transfer, conveyance, encumbrance, concealment or liquidation in the meantime that the legality of
their acquisition was determined. Indeed, the recovery of this ill-gotten wealth of former President
Marcos, his relatives and cronies is not only a matter of right but the paramount duty of the government.
Viewed from the uniqueness of the PCGGs creation and role, on one hand, and the general policy
of the Courts not to interfere with the prosecutors evaluation of the sufficiency of evidence that would
establish probable cause, on the other hand, we find it unfortunate, if not disturbing, how the respondents

documented efforts to assist the PCGG in the recovery of the ill-gotten wealth (given the staggering
amount involved particularly in the UBS account) and how the concerns they raised that allegedly hamper
the governments efforts, would end up as a legal warfare between two camps supposedly on the same
side.
The seriousness of Atty. Reyes allegations of irregularities [180] should have served as a warning
signal to the PCGG which carries a critical role in our peoples remedial efforts in addressing the causes
that gave rise to the EDSA revolution. The PCGGs success, if any and if at all, cannot be downplayed. To
be sure, the PCGGs silence in the face of these accusations (except to characterize the respondents
defensive assaults as an undeserved gibe [181]) raises a lot of unanswered questions and appears to justify
the allegations of political motivation behind the criminal charges against the respondents.
In sum, under the circumstances and the other observations made, the Court cannot but rule that
the petitioners failed to establish the existence of grave abuse of discretion justifying judicial interference.
WHEREFORE, we hereby DISMISS the petition.
SO ORDERED.

THIRD DIVISION
[G.R. Nos. 138859-60. February 22, 2001]
ALVAREZ ARO
YUSOP, petitioner,
Division), respondent.

vs. The

Honorable

SANDIGANBAYAN

(First

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

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

Acting on an Affidavit-Complaint[3] filed by a certain Erlinda Fadri, the Office of the OmbudsmanMindanao issued an Order[4] dated September 19, 1995, naming the following as respondents: Benjamin
Arao, Frederick Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of
Pagadian City. The Order also required respondents, within ten days from receipt thereof to submit their
counter-affidavits and other pieces of controverting evidence.
The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998,
recommending the prosecution of the aforenamed respondents for violation of Article 269 of the
Revised Penal Code and Section 3-a in relation to Section 3-e of Republic Act No. 3019 as
amended. Significantly, the name of Petitioner Alvarez A. Yusop was included as one of the persons to be
prosecuted, although he was not one of the original respondents mentioned in the Order of September 19,
1995. Ombudsman Aniano A. Desierto approved the recommendation.
[5]

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal
Case Nos. 24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrest under Article 269 of
the Revised Penal Code).
On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No.
24524. Petitioner, however, posted a bail bond before the Regional Trial Court of Dipolog City on May 20
of the same year. On the same day, he filed a Motion To Remand Case To The Ombudsman - Mindanao
For Preliminary Investigation.
In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his
alleged failure to submit himself to the jurisdiction of the anti-graft court.
On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of preliminary
investigation. In an Order dated September 22, 1998, the Sandiganbayan resolved not to take action on
the Motion, because petitioner had not yet submitted himself to its jurisdiction insofar as Criminal Case
No. 24525 was concerned.
On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not
been accorded preliminary investigation. In its two assailed Orders, the Sandiganbayan rejected his claim
and proceeded with the arraignment.
Hence, this recourse.[6]
Ruling of the Sandiganbayan

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

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

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

Preliminary Investigation

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

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

The Rules of Court requires such investigation before an information for an offense punishable by at
least four years, two months and one day may be filed in court. [9] The old Rules, on the other hand,
mandates preliminary investigation of an offense cognizable by the regional trial court. [10]
Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019. Such
offense is punishable with, among other penalties, imprisonment of six years and one month to fifteen
years.[11] Under the aforecited Rules, whether in the old or the revised version, he is entitled to a
preliminary investigation.
It is undisputed, however, that before the Information against petitioner was filed, no preliminary
investigation had been conducted. In fact, the Office of the Ombudsman admitted that petitioner was
denied of his right to preliminary investigation.[12]
We find no basis for the Sandiganbayans ruling that petitioner had not given timely notice nor any
statement of the alleged inadequacy of the proceeding regarding the filing of the Information.
First, there was no showing that petitioner was notified of the charges filed by Erlinda Fadri. As
earlier noted, he had not been named as a respondent in the September 19, 1995 Order of the Office of the
Ombudsman in Mindanao. His name did not even appear in the caption of its January 15, 1998
Resolution,[13] which recommended the filing of charges against the accused. Indeed, in his Compliance
with the August 26, 1998 Sandiganbayan Resolution, [14] Special Prosecution Officer Diosdado V. Calonge
manifested that petitioner was not notified of the proceedings of the preliminary investigation and was
accordingly not given the opportunity to be heard thereon. [15]
After learning of the filing of the Information against him when he was served a Warrant of Arrest,
petitioner did not dally. He immediately informed the Sandiganbayan that no preliminary investigation
had been conducted in regard to him. Several months later, moments before his arraignment, he reiterated
his prayer that the preliminary investigation be conducted. In this light, the Sandiganbayan erred in saying
that he had not given the court timely notice of this deficiency.
Even assuming that prior to the filing of the Information, petitioner had known that the proceedings
and the investigation against his co-accused were pending, he cannot be expected to know of the
investigators subsequent act of charging him. Precisely, he had not been previously included therein and,
consequently, he had not been notified thereof.
In Go v. Court of Appeals, [16] this Court held that the right to preliminary investigation is waived
when the accused fails to invoke it before or at the time of entering a plea at arraignment. Conversely, if
the accused does invoke it before arraignment, as the petitioner did in this case, the right is not waived.
Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary
investigation. Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure, [a]n application
for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality
of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary
investigation of the charge against him, provided that he raises them before entering his plea. x x x.

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To
deny it to petitioner would deprive him of the full measure of his right to due process. [17] Hence,
preliminary investigation with regard to him must be conducted.
We disagree with the Sandiganbayans reliance on Section 27 of Republic Act 6770. [18] This provision
cannot justify the evasion of the requirement set forth in the Rules of Court for conducting preliminary
investigation. The law does not sanction such interpretation, for it deals merely with the finality of orders,
directives and decisions of the Office of the Ombudsman -- not the deprivation of the substantive right to
a preliminary investigation. Moreover, petitioner cannot be bound by the Ombudsmans January 15, 1998
Resolution, which recommended the filing of charges. He was not a party to the case and was not
accorded any right to present evidence on his behalf.
In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that
the former has the duty x x x to see to it that the basic rudiments of due process are complied with. [19]For
its part, the Sandiganbayan opted to remain silent when asked by this Court to comment on the Petition.
Dismissal of the Charges

Not Justified

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

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

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169554

October 28, 2009

NIEVA M. MANEBO, Petitioner,

vs.
SPO1 ROEL D. ACOSTA and NUMERIANO SAPIANDANTE, Respondents.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the
Decision1 dated August 31, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 83300.
The antecedents of this case are as follows:
On May 4, 2000, at 6:30 p.m. at Barangay San Mariano, Sta. Rosa, Nueva Ecija, Bernadette M.
Dimatulac, the victim, and Flordeliza V. Bagasan (Bagasan)2 were seated beside each other on
a papag watching television inside the church of the Kaibigan Foundation, Inc. Suddenly, a man
later identified as SPO1 Roel Acosta (respondent Acosta), with an unidentified male companion,
both with short firearms, entered the church premises. Respondent Acosta approached the
victim and Bagasan and, at an arm's length distance, respondent Acosta shot the victim several
times on the head and body causing her instantaneous death.
Severino Sardia (Sardia), who was standing in front of his house at Barangay San Mariano, Sta.
Rosa, Nueva Ecija, heard several gunshots and saw two men with short firearms run out of the
Kaibigan Foundation, Inc. Chapel. The two men immediately boarded an owner-type jeep
without a plate number parked along Maharlika Highway and proceeded to the direction going to
San Leonardo town. While the driver of the jeep was in the process of backing up his vehicle,
Sardia recognized the driver as Numeriano Sapiandante (respondent Sapiandante), the
Barangay Captain of Barangay Tagumpay, San Leonardo, Nueva Ecija.
A complaint for murder was filed by Nieva Manebo (Manebo), sister of the victim, against
respondents Acosta and Sapiandante before the Special Action Unit (SAU) of the National
Bureau of Investigation (NBI).

The findings of the SAU recommending the filing of a murder case against respondents and a
certain John Doe was referred to the Office of the Chief State Prosecutor (OCSP), Department
of Justice (DOJ), for preliminary investigation.3 Respondents, in turn, filed directly with the DOJ
a counter-charge of perjury, offering false witness and violation of Presidential Decree (PD) No.
1829 against Manebo, Bagasan, and Sardia.4
Respondents denied the accusations against them. Respondent Acosta claimed that on May 4,
2000, he was on a special assignment in San Leonardo, Nueva Ecija, pursuant to a directive
issued by Police Chief Inspector Fernando Galang; that there was no reason for him to kill the
victim, as he had no grudge against her; that Bagasan's description of him did not fit his
physical attributes; that there was a substitution of witness, considering that the person beside
the victim when she was shot was identified in the police report as Liza Gragasan and not
Flordeliza Bagasan. Respondent Acosta also presented the affidavits of his witnesses
corroborating his claim that he was in San Leonardo, Nueva Ecija at the time of the shooting
incident.
Respondent Sapiandante denied that he was the driver of the get-away vehicle, as he did not
know how to drive nor was he a holder of a driver's license; that Sardia had a grudge against
him because of the dismissal of the case filed by the former against him; and that respondent
Acosta never testified for him in a case, contrary to Sardia's claim.
On January 22, 2001, State Prosecutor Melvin J. Abad issued a Joint Resolution,5 approved by
the Chief State Prosecutor, the dispositive portion of which reads:
WHEREFORE, it is respectfully recommended that the foregoing Joint Resolution be approved
and the attached information for murder against respondents SPO1 Roel D. Acosta, Bgy.
Captain Numeriano R. Sapiandante, and a certain John Doe be filed before the proper court
and that the counter-charge for perjury, offering false witness, and violation for P.D. 1829
against Severino S. Sardia, Flordeliza Bagasan and Nieva M. Manebo be dismissed for lack of
merit.6
On the same day, an Information7 for murder was filed with the Regional Trial Court (RTC),
Branch 27, Cabanatuan City against respondents and a certain John Doe, committed as
follows:
That on or about May 4, 2000, at around 6:30 p.m. in the Municipality of Sta. Rosa, Nueva Ecija,
and within the jurisdiction of this Honorable Court, the said three (3) accused, two (2) being
armed, conspiring, confederating and acting together, and mutually helping each other, did then
and there willfully, unlawfully and feloniously, with malice, intent to kill and treachery, attack,
assault and use personal violence upon one BERNADETTE M. DIMATULAC, with accused
SPO1 Roel D. Acosta suddenly and unexpectedly firing several shots at her with the use of his
firearm and accused John Doe and Numeriano Sapiandante, acting as back-up and driver,
respectively, thereby inflicting upon the said BERNADETTE M. DIMATULAC mortal wounds
which were the direct and immediate cause of her death.

CONTRARY TO LAW.
Respondents filed their motion for reconsideration, which was denied in a Resolution8 dated
March 2, 2001.
On March 23, 2001, respondents filed their appeal with the DOJ Secretary.
In the meantime, the herein murder case filed in the RTC of Cabanatuan City, Branch 27, was
transferred to the RTC of Manila, Branch 18, and docketed as Criminal Case No. 01-196354.
Alias warrants of arrest9 for respondents were issued on February 28, 2003.
On June 27, 2003, the DOJ Secretary issued his Resolution10 reversing the appealed resolution,
the dispositive portion of which reads:
WHEREFORE, the appealed resolution is hereby REVERSED. The Chief State Prosecutor is
directed to move for the withdrawal of the information filed against respondents and to report the
action taken hereon within ten (10) days from receipt hereof.11
In so ruling, the DOJ said:
Undoubtedly, denial and alibi are inherently weak for they can easily be fabricated and is
invariably received with caution. Truly, alibi cannot prevail over the positive identification of an
accused. Nevertheless, this judicial dictum presupposes the absence of any doubt as to the
positive identification of the accused. In other words, the prosecution is not relieved of the
required quantum of proof simply because the defense invoked is alibi. Where questionable,
alibi assumes strength and significance which is the situation in the present case.
Immediately after receiving a call from a certain Marlon de Guzman regarding the incident,
Police Chief Inspector (PCI) Peter Guibong led the investigation of the case and prepared a
report. In the course thereof, it was gathered that the victim was shot while watching television
in the company of one Liza Gragasan. Still in a state of shock, Gragasan was then not available
to provide any information as regards the incident. Nonetheless, PCI Guibong sent a formal
letter to Gragasan to provide information on the shooting incident. Gragasan never responded
to the invitation.
Comes now, instead, a certain Flordeliza Bagasan who executed an affidavit after more than
four (4) months alleging that she was seated beside the victim and witnessed the actual
shooting. In turn, Bagasan gave a description of the assailant which, admittedly, does not fit the
physical attributes of respondent Acosta. Complainant Manebo could only ascribe the variance
to the insinuation that respondent Acosta, short of undergoing plastic surgery, altered his image
to avoid being recognized. This is rather too strenuous to be believed.
Under the circumstances, Bagasan's presence at the crime scene when the crime was being
committed is highly suspect. Bagasan's delayed testimony coupled with an erroneous

description, casts a thick cloud of doubt on her credibility. Such testimony deserves no
consideration at all.
The same is true with the testimony of witness Sardia as regards the alleged participation of
respondent Sapiandante. Sardia was not among those mentioned in the police report.
Surprisingly, his testimony was likewise belatedly executed. Granting that he was already a
resident of the barangay where the incident occurred, no reason was given as to why it took him
a long period of time to give a statement about the killing. Fear could not have been the reason
because as early as June 1998, he filed a complaint for attempted murder against Sapiandante
which was later dismissed. As it were, the victim, involved in several criminal incidents, likewise
filed a number of cases rooted from the complaint of one Alicia Yambot against Sardia as
reported by PCI Guibong. Sardia's testimony may also not be given credence with respect to
respondent Acosta since he did not witness the actual shooting of the victim.
All told, the evidence against respondents Acosta and Sapiandante lack the required quantum
of proof sufficient to indict them for the offense charged.12
Pursuant to the resolution of the DOJ Secretary, the prosecutor filed a Motion to Withdraw the
Information.
Petitioner filed an appeal13 with the Office of the President (OP) which, on January 27, 2004
rendered its Decision14 dismissing the appeal and affirming in toto the resolution of the DOJ
Secretary. The OP found the findings of fact and conclusions of law of the DOJ Secretary to be
amply supported by substantial evidence.
Petitioner's motion for reconsideration was denied by the OP in an Order15 dated March 5, 2004.
Aggrieved, petitioner filed a petition for certiorari under Rule 43 with the CA.
Meanwhile, the RTC of Manila, Branch 18, issued an Order16 dated June 22, 2004, which
resolved to suspend the resolution on the motion to withdraw information filed by the prosecutor,
considering that respondents were still at-large and had not been prejudiced by the petition for
review filed with the CA and also in deference to the appellate court. The RTC likewise ruled for
the suspension of the implementation of the warrants of arrest for respondents as moved by the
respondents' counsel until after the resolution of the petition filed before the CA.
On August 31, 2005, the CA rendered the assailed Decision dismissing the petition for lack of
merit.
The CA said that the OP committed no error in affirming the resolution of the DOJ Secretary;
that courts will not interfere in the conduct of preliminary investigations and leave to the
investigating prosecutor a sufficient latitude of discretion in the determination of what constitutes
sufficient evidence as will establish probable cause for the filing of information against the
offender. The CA found that all was not lost for petitioner, since the denial of her petition did not
mean an automatic dismissal of the information following the resolution of the DOJ Secretary, as

the RTC was mandated to independently evaluate the merits of the case; and it may agree or
disagree with the recommendation of the DOJ Secretary, since reliance on the latter alone
would be an abdication of the RTC's duty and jurisdiction to determine a prima facie case.
Hence, this petition, which raises the following issues:
Whether or not the Honorable Court of Appeals, the Office of the President and the Secretary of
Justice committed grave errors in the appreciation of facts and of laws in recommending the
dismissal of the complaint based solely on the matters, which are best, determined during a fullblown trial.
Whether or not the Secretary of Justice may disregard the provisions of Department Circular
No. 70 dated July 3, 2000, which became effective on September 1, 2000, particularly Sections
5 and 6.
Whether or not there is probable cause to charge the respondents for the crime of murder.17
We shall first resolve the second issue, where petitioner claims that the appeal filed by
respondents with the Secretary of Justice should have been denied for their failure to comply
with Sections 5 and 6 of Department Circular No. 7018 issued by the Department of Justice on
September 1, 2000.
Section 5. Contents of the Petition.
xxxx
If an information has been filed in court pursuant to the appealed resolution, a copy of the
motion to defer proceedings filed in court must also accompany the petition.
xxxx
Section 6. Effect of failure to comply with requirements. - The failure of the petitioner to comply
with any of the foregoing requirements shall constitute sufficient ground for the dismissal of the
petition.
Respondents filed their petition for review with the DOJ Secretary on March 23, 2001. On
August 20, 2001, they filed with the RTC of Cabanatuan City, Branch 27, a Motion to Suspend
Proceedings19 pending a final determination of the merits of their petition by the DOJ Secretary.
On August 27, 2001, respondents filed with the DOJ a document captioned as
Compliance20 where they submitted the motion to suspend proceedings filed in the RTC.
Notably, the motion to suspend proceedings was only filed with the RTC after respondents had
already filed their petition for review with the DOJ which explains why the petition was not
accompanied by a motion to suspend proceedings. Notably, immediately after the motion to
suspend proceeding was filed with the RTC, respondents submitted a copy of such motion with

the DOJ. Under the circumstances, we hold that there was substantial compliance with the
requirements under Section 5 of Department Circular No.70.
The first and third issues refer to the question of whether the CA erred in affirming the ruling of
the Office of the President, which adopted the finding of the DOJ Secretary that there was no
probable cause to indict respondents for murder.
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 abuse
of discretion amounting to want of jurisdiction.21However, this Court may ultimately resolve the
existence or non-existence of probable cause by examining the records of the preliminary
investigation when necessary for the orderly administration of justice.22 We find that the present
case warrants the application of the exception.1avvphi1
Probable cause has been defined as the existence of such facts and circumstances as would
lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that
the person charged is guilty of the crime subject of the investigation.23 Being based merely on
opinion and reasonable belief, it does not import absolute certainty.24 Probable cause need not
be based on clear and convincing evidence of guilt, as the investigating officer acts upon
reasonable belief. Probable cause implies probability of guilt and requires more than bare
suspicion but less than evidence to justify a conviction.25
To determine the existence of probable cause, there is a need to conduct a preliminary
investigation.26 A preliminary investigation constitutes a realistic judicial appraisal of the merits of
a case.27 Its purpose is to
determine whether (a) a crime has been committed; and (b) there is probable cause to believe
that the accused is guilty thereof.28 It is a means of discovering which person or persons may be
reasonably charged with a crime.
The conduct of a preliminary investigation is executive in nature.29 As we have said, the Court
may not be compelled to pass upon the correctness of the exercise of the public prosecutors
function, unless there is a showing of grave abuse of discretion or manifest error in his
findings.30 Grave abuse of discretion implies a capricious and whimsical exercise of judgment
tantamount to lack or excess of jurisdiction. The exercise of power must have been done in an
arbitrary or a despotic manner by reason of passion or personal hostility.31 It must have been so
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.
In this case, we find that the DOJ committed a manifest error in finding no probable cause to
charge respondents with the crime of murder.
In reversing the findings of the prosecutor, the DOJ Secretary found that the police report
prepared after the killing incident stated that the person seated beside the victim, who was

watching television when shot, was Liza Gragasan. However, the DOJ Secretary continued that
more than four months after the incident, a witness appeared in the person of Flordeliza
Bagasan who claimed to be seated beside, and witnessed the actual shooting of, the victim.
The DOJ Secretary found Flordeliza's description of respondent Acosta different from the latter's
physical attributes. He then ruled that Flordeliza's delayed testimony, coupled with her
erroneous description of respondent Acosta, cast a cloud of doubt on her credibility.
The DOJ Secretary also did not give credence to witness Sardia's testimony on respondent
Sapiandante's participation in the incident. He found that Sardia was not among those
mentioned in the police report, and that his testimony was likewise belatedly executed without
any reason given for such delay; that fear could not have been Sardia's reason, since in June
1998, he had already filed a complaint for attempted murder against respondent Sapiandante,
which was later dismissed; and that Sardia did not witness the actual shooting of the victim.
We are not persuaded.
While the initial police report stated that the name of the person who was seated beside the
victim when the latter was shot was Liza Gragasan, such report would not conclusively establish
that Liza Gragasan could not have been Flordeliza Bagasan, the witness who executed an
affidavit four months after the incident. Notably, Flordeliza's nickname is Liza, and her surname
Bagasan sounds similar to Gragasan. Under the rule of idem sonans, two names are said to be
"idem sonantes" if the attentive ear finds difficulty in distinguishing them when
pronounced.32 The question whether a name sounds the same as another is not one of spelling
but of pronunciation.33 While the surname Bagasan was incorrectly written as Gragasan, when
read, it has a sound similar to the surname Bagasan. Thus, the presence of Bagasan at the
crime scene was established, contrary to the conclusion arrived at by the DOJ Secretary.
The execution of Bagasan's affidavit four months after the incident should not be taken against
her, as such reaction is within the bounds of expected human behavior. Notably, the police
report stated that during the conduct of the investigation, Bagasan was shocked after the
incident and could not possibly be interviewed. Initial reluctance to volunteer information
regarding a crime due to fear of reprisal is common enough that it has been judicially declared
as not affecting a witness' credibility.34 Bagasans action revealed a spontaneous and natural
reaction of a person who had yet to fully comprehend a shocking and traumatic
event.35 Besides, the workings of the human mind are unpredictable. People react differently to
emotional stress. There is simply no standard form of behavioral response that can be expected
from anyone when confronted with a strange, startling or frightful occurrence.36
Moreover, a witness' delay in reporting what she knows about a crime does not render her
testimony false or incredible, for the delay may be explained by the natural reticence of most
people to get involved in a criminal case.37
The DOJ Secretary's finding that the description given by Bagasan did not fit the physical
attributes of respondent Acosta is not persuasive, since Bagasan was able to positively identify
respondent Acosta. She did so when a cartographic sketch of respondent Acosta was shown to

her and later when she was asked to identify him from among the three pictures of men shown
to her during the investigation at the NBI. Notably, there was nothing in the records that showed
that Bagasan was impelled by any improper motive in pointing to respondent Acosta.
The identification made by Bagasan, with respect to respondent Acosta was corroborated by
another witness, Sardia, who saw Acosta with another unidentified male companion rushing out
of the chapel where the killing incident took place. Sardia was familiar with the face of
respondent Acosta, since the latter was a witness in a case of frustrated murder against
Sapiandante. Although Sapiandante denied in his counter-affidavit that respondent Acosta ever
became such witness, this allegation should be proven during the trial of the case. Sardia was
also able to positively identify Sapiandante as the driver of the get-away vehicle.
The DOJ Secretary did not also find the statements given by Sardia as credible, as the latter
was not among those mentioned as a witness in the police report.
We do not agree.
The failure of the police report to mention Sardia's name as a witness would not detract from the
fact that he saw respondent Acosta with an unidentified man running away from the chapel and
riding the waiting get- away vehicle driven by Sapiandante. Entries in a police blotter, though
regularly done in the course of the performance of official duty, are not conclusive proof of the
truth of such entries and should not be given undue significance or probative value for they are
usually incomplete and inaccurate.38
The matter of assigning value to the declaration of a witness is best done by the trial court,
which can assess such testimony in the light of the demeanor, conduct and attitude of the
witness at the trial stage.39
Finally, we also do not agree with the DOJ Secretary's finding that since Sardia's affidavit was
also belatedly executed, the same is not credible. As we have said, witnesses are usually
reluctant to volunteer information about a criminal case or are unwilling to be involved in or
dragged into criminal investigations due to a variety of valid reasons.40 Fear of reprisal and the
natural reluctance of a witness to get involved in a criminal case are sufficient explanations for a
witness' delay in reporting a crime to authorities.41 The DOJ ruling -- that fear could not have
been the reason, because as early as 1998 Sardia had already filed a complaint for attempted
murder against Sapiandante, which was already dismissed -- is merely speculative.
We need not over-emphasize that in a preliminary investigation, the public prosecutor merely
determines whether there is probable cause or sufficient ground to engender a well-founded
belief that a crime has been committed, and that the respondent is probably guilty thereof and
should be held for trial.42 Considering the foregoing, we find that the CA erred in affirming the
DOJ's finding of the absence of probable cause to indict respondents for murder.
WHEREFORE, premises considered, the instant Petition is GRANTED. The Decision dated
August 31, 2005 of the Court of Appeals in CA-G.R. SP No. 83300 is REVERSED and SET

ASIDE. The Secretary of Justice is hereby ORDERED to direct the Office of the City Prosecutor
of Manila to withdraw the Motion to Withdraw the Information for Murder already filed in the trial
court.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 172070-72

June 1, 2007

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

CLARO C. CASAMBRE,Petitioners,
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR
JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ,
STATE PROSECUTOR IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in
their capacity as members of the Department of Justice panel of prosecutors
investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M.
GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief,
Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT.
YOLANDA G. TANIGUE,Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 172074-76

June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIO,

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

G.R. No. 175013

June 1, 2007

CRISPIN B. BELTRAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the
Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE
ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial
Court of Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity
as Presiding Judge of Regional Trial Court of Makati City, Branch 150, Respondents.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners
prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and
the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of
petitioners cases.
The Facts
Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 17207476, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A.
Casio (Casio), and Rafael V. Mariano (Mariano),1 are members of the House of
Representatives representing various party-list groups.2Petitioners in G.R. Nos. 172070-72 are
private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to
Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.
G.R. No. 175013 (The Beltran Petition)
Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No.
1017 on 24 February 2006 declaring a "State of National Emergency," police officers3 arrested
Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in
Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did
not inform Beltran of the crime for which he was arrested. On that evening, Beltran was
subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article
142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in
Quezon City on 24 February 2006, on the occasion of the 20th anniversary of the EDSA
Revolution. The inquest was based on the joint affidavit of Beltrans arresting officers who
claimed to have been present at the rally. The inquest prosecutor4 indicted Beltran and filed the
corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5

The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was
subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for
Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The
inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue)
and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal
Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is
the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action
the results of the CIDGs investigation implicating Beltran, the petitioners in G.R. Nos. 17207476, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to
overthrow the Arroyo government. The plot was supposed to be carried out jointly by members
of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas
(MKP), which have formed a "tactical alliance."
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause
to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an
Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other
individuals "conspiring and confederating with each other, x x x, did then and there willfully,
unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong
Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan
(KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up
arms against the duly constituted government, x x x."7 The Information, docketed as Criminal
Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R. AldecoaDelorino (Judge Delorino).
Beltran moved that Branch 137 make a judicial determination of probable cause against
him.8 Before the motion could be resolved, Judge Delorino recused herself from the case which
was re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya).
In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against
Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case
without resolving Beltrans motion. Judge Elmo M. Alameda of Branch 150, to whom the case
was re-raffled, issued an Order on 29 August 2006 denying Beltrans motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29
August 2006 and to enjoin Beltrans prosecution.
In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion
was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony.
G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)
Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March
2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the
complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quartered

themselves inside the House of Representatives building for fear of being subjected to
warrantless arrest.
During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a
masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness
against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel
Velasco who then gave copies of the affidavit to media members present during the
proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their
counter-affidavits. Petitioners were furnished the complete copies of documents supporting the
CIDGs letters only on 17 March 2006.
Petitioners moved for the inhibition of the members of the prosecution panel for lack of
impartiality and independence, considering the political milieu under which petitioners were
investigated, the statements that the President and the Secretary of Justice made to the media
regarding petitioners case,11 and the manner in which the prosecution panel conducted the
preliminary investigation. The DOJ panel of prosecutors denied petitioners motion on 22 March
2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases.
However, the panel of prosecutors denied petitioners motions on 4 April 2006.
Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.
Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo
order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued
a Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The
prosecutors filed the corresponding Information with Branch 57 of the RTC Makati, docketed as
Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146),
charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition
to enjoin the prosecution of Criminal Case No. 06-944.
In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary
investigation of petitioners was not tainted with irregularities. The Solicitor General also claims
that the filing of Criminal Case No. 06-944 has mooted the Maza petition.
The Issues
The petitions raise the following issues:
1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was
valid and (b) whether there is probable cause to indict Beltran for Rebellion; and
2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined
from continuing with the prosecution of Criminal Case No. 06-944.13
The Ruling of the Court

We find the petitions meritorious. On the Beltran Petition

The Inquest Proceeding against Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully arrested without
warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the
instances when such warrantless arrest may be effected, thus:
Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
xxxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall
be forthwith delivered to the nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112.
The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without
a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could
only have conducted as he did conduct an inquest for Inciting to Sedition and no other.
Consequently, when another group of prosecutors subjected Beltran to a second inquest
proceeding for Rebellion, they overstepped their authority rendering the second inquest void.
None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of
Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had
just committed Rebellion, sufficient to form probable cause to believe that he had committed
Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard
Beltran make an allegedly seditious speech on 24 February 2006.17
Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest
officer is to determine if the arrest of the detained person was made "in accordance with the
provisions of paragraphs (a) and (b) of Section 5, Rule 113."18 If the arrest was not properly
effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides:
Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not
made in accordance with the Rules, he shall:
a) recommend the release of the person arrested or detained;

b) note down the disposition on the referral document;

c) prepare a brief memorandum indicating the reasons for the action taken; and
d) forward the same, together with the record of the case, to the City or Provincial
Prosecutor for appropriate action.
Where the recommendation for the release of the detained person is approved by the City or
Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary
investigation, the order of release shall be served on the officer having custody of said detainee
and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary
investigation, together with the copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other supporting evidence. (Emphasis
supplied)
For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in
relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest
void.19 Beltran would have been entitled to a preliminary investigation had he not asked the trial
court to make a judicial determination of probable cause, which effectively took the place of
such proceeding.
There is No Probable Cause to Indict
Beltran for Rebellion.
Probable cause is the "existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted."20 To accord respect to the
discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does
not interfere with the prosecutors determination of probable cause for otherwise, courts would
be swamped with petitions to review the prosecutors findings in such investigations.21However,
in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear
insufficiency of evidence to support a finding of probable cause, thus denying the accused his
right to substantive and procedural due process, we have not hesitated to intervene and
exercise our review power under Rule 65 to overturn the prosecutors findings.22 This exception
holds true here.
Rebellion under Article 134 of the Revised Penal Code is committed
[B]y rising publicly and taking arms against the Government for the purpose of removing from
the allegiance to said Government or its laws, the territory of the Republic of the Philippines or
any part thereof, or any body of land, naval, or other armed forces or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and
2. That the purpose of the uprising or movement is either
(a) to remove from the allegiance to said Government or its laws:
(1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives.23
Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done
in furtherance of a political end.24
The evidence before the panel of prosecutors who conducted the inquest of Beltran for
Rebellion consisted of the affidavits and other documents25 attached to the CIDG letters. We
have gone over these documents and find merit in Beltrans contention that the same are
insufficient to show probable cause to indict him for Rebellion. The bulk of the documents
consists of affidavits, some of which were sworn before a notary public, executed by members
of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala
(Escala), dated 20 Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February
2006,27 none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the
afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and
other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia,
Batangas and that after the passengers alighted, they were met by another individual who
looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP
and that (1) he attended the CPPs "10th Plenum" in 1992 where he saw Beltran; (2) he took part
in criminal activities; and (3) the arms he and the other CPP members used were purchased
partly from contributions by Congressional members, like Beltran, who represent party-list
groups affiliated with the CPP.
The allegations in these affidavits are far from the proof needed to indict Beltran for taking part
in an armed public uprising against the government. What these documents prove, at best, is
that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years
earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran
committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ
Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a
rebellion. Beltrans alleged presence during the 1992 CPP Plenum does not automatically make
him a leader of a rebellion.
In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman,
Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does
not acknowledge, mere membership in the CPP does not constitute rebellion.29 As for the

alleged funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas
affidavit merely contained a general conclusion without any specific act showing such funding.
Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na
naihalal sa Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at CRISPIN
BELTRAN, x x x."30 Such a general conclusion does not establish probable cause.
In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25
February 2006,31as basis for the finding of probable cause against Beltran as Fuentes provided
details in his statement regarding meetings Beltran and the other petitioners attended in 2005
and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed,
among others.
The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to
the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes
affidavit in their possession when they conducted the Rebellion inquest against Beltran on that
day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only
during the preliminary investigation of the other petitioners on 13 March 2006 during which
Fuentes subscribed to his statement before respondent prosecutor Velasco.
Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to
Branch 137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion for
judicial determination of probable cause. Such belated submission, a tacit admission of the
dearth of evidence against Beltran during the inquest, does not improve the prosecutions case.
Assuming them to be true, what the allegations in Fuentes affidavit make out is a case for
Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not
Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring
down a government is a mere preparatory step to commit the acts constituting Rebellion under
Article 134. Even the prosecution acknowledged this, since the felony charged in the
Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to Commit
Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others
conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it
nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it.
The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP
and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the
minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the
alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan,
from whom the "flash drive" containing the so-called minutes was allegedly taken, denies
knowing Beltran.
To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a
Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation.
Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion,
he is entitled to bail as a matter of right since there is no allegation in the Information that he is a

leader or promoter of the Rebellion.33 However, the Information in fact merely charges Beltran
for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion.
As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to
Commit Rebellion, a bailable offense.34
On the Ladlad and Maza Petitions
The Preliminary Investigation was Tainted
With Irregularities.
As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution
of offenses, a practice rooted on public interest as the speedy closure of criminal investigations
fosters public safety.35 However, such relief in equity may be granted if, among others, the same
is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive
manner36 or (b) to afford adequate protection to constitutional rights.37 The case of the
petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.
The procedure for preliminary investigation of offenses punishable by at least four years, two
months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal
Procedure, thus:
Procedure.The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied
by the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed
and sworn to before any prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of whom must certify
that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss it if he finds no ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If
the evidence is voluminous, the complainant may be required to specify those which he
intends to present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of
his witnesses and other supporting documents relied upon for his defense. The counteraffidavits 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 counteraffidavits within the ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party or a witness. The parties can be present at the hearing but without the right
to examine or cross-examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits
and other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial. (Emphasis
supplied)
Instead of following this procedure scrupulously, as what this Court had mandated in an earlier
ruling, "so that the constitutional right to liberty of a potential accused can be protected from any
material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent
prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint
(which, with its attachment, must be of such number as there are respondents) be accompanied
by the affidavits of the complainant and his witnesses, subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters
of Tanigue and Mendoza of the CIDG, PNP as complaints39 and accepted the affidavits attached
to the letters even though some of them were notarized by a notary public without any showing
that a prosecutor or qualified government official was unavailable as required by Section 3(a) of
Rule 112.
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint,
must determine if there are grounds to continue with the investigation. If there is none, he shall
dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after
receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to
petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the

complaints and its attachments." During the investigation, respondent prosecutors allowed the
CIDG to present a masked Fuentes who subscribed to an affidavit before respondent
prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes affidavit not to
petitioners or their counsels but to members of the media who covered the proceedings.
Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It
was only four days later, on 17 March 2006, that petitioners received the complete copy of the
attachments to the CIDG letters.1a\^/phi1.net
These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March
2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f]
Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating
the complainants antics during the investigation, and distributing copies of a witness affidavit to
members of the media knowing that petitioners have not had the opportunity to examine the
charges against them, respondent prosecutors not only trivialized the investigation but also lent
credence to petitioners claim that the entire proceeding was a sham.
A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on
the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized
the right to a preliminary investigation as not "a mere formal or technical right" but a
"substantive" one, forming part of due process in criminal justice.41 This especially holds true
here where the offense charged is punishable by reclusion perpetua and may be non-bailable
for those accused as principals.
Contrary to the submission of the Solicitor General, respondent prosecutors filing of the
Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not
moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions
cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net
On Respondent Prosecutors Lack of Impartiality
We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent
Secretary of Justice, who exercises supervision and control over the panel of prosecutors,
stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We [the
DOJ] will just declare probable cause, then its up to the [C]ourt to decide x x x."42 Petitioners
raised this issue in their petition,43 but respondents never disputed the veracity of this statement.
This clearly shows pre-judgment, a determination to file the Information even in the absence of
probable cause.
A Final Word
The obvious involvement of political considerations in the actuations of respondent Secretary of
Justice and respondent prosecutors brings to mind an observation we made in another equally
politically charged case. We reiterate what we stated then, if only to emphasize the importance

of maintaining the integrity of criminal prosecutions in general and preliminary investigations in

particular, thus:
[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving
the impression that their noble office is being used or prostituted, wittingly or unwittingly, for
political ends, or other purposes alien to, or subversive of, the basic and fundamental objective
of observing the interest of justice evenhandedly, without fear or favor to any and all litigants
alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the
established procedure may be publics perception of the impartiality of the prosecutor be
enhanced.44 1a\^/phi1.net
WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated
31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29
August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and
172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by
respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to
DISMISS Criminal Case Nos. 06-452 and 06-944.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 148468

January 28, 2003

ATTY. EDWARD SERAPIO, petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE
NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.
x---------------------------------------------------------x
G.R. No. 148769

January 28, 2003

EDWARD SERAPIO, petitioner,

vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
x---------------------------------------------------------x
G.R. No. 149116

January 28, 2003

EDWARD SERAPIO, petitioner,

vs.

HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE

PHILIPPINES, respondents.
CALLEJO, SR., J.:
Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the
resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a
reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal
Case No. 26558 for plunder wherein petitioner is one of the accused together with former
President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others.
The records show that petitioner was a member of the Board of Trustees and the Legal Counsel
of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February
2000 ostensibly for the purpose of providing educational opportunities for the poor and
underprivileged but deserving Muslim youth and students, and support to research and advance
studies of young Muslim educators and scientists.
Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a
donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor
Luis "Chavit" Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received
the donation and turned over the said amount to the Foundation's treasurer who later deposited
it in the Foundation's account with the Equitable PCI Bank.
In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E.
Estrada and his cohorts of engaging in several illegal activities, including its operation on the
illegal numbers game known asjueteng. This triggered the filing with the Office of the
Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and
petitioner, together with other persons. Among such complaints were: Volunteers Against Crime
and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim.
Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada,
Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera,
Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward
Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No.
0-00-1757.
Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other
respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman
conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint
resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be
charged with the criminal offense of plunder.
On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against
former President Estrada, who earlier had resigned from his post as President of the Republic of
the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged
Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information
in said case charging Estrada and several co-accused, including petitioner, with said crime. No
bail was recommended for the provisional release of all the accused, including petitioner. The
case was raffled to a special division which was subsequently created by the Supreme Court.
The amended Information reads:

"That during the period from June, 1998 to January, 2001, in the Philippines, and within
the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A
PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his coaccused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there
wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL
VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE
FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A
combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES
MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE
MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance
with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration
OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit
public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of the TWO HUNDRED
MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in
CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a.
Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE,
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION
ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
[P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE
BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR

INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND

JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLEPCI BANK.
CONTRARY TO LAW."1
On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding
probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of
the Ombudsman a Motion for Reconsideration and/or Reinvestigation.2 Petitioner likewise filed
on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in
Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a
Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration
and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the
Charges against accused Edward Serapio.3
On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for
reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended
Information charging petitioner with plunder had already been filed with the Sandiganbayan.4
In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal
Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the
accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same
date for the arrest of petitioner.5 When apprised of said order, petitioner voluntarily surrendered
at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza.
Petitioner has since been detained at Camp Crame for said charge.
The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case
No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the
Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.6 For his
part, petitioner's co-accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent
Omnibus Motion alleging that he was entitled to bail as a matter of right.
During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution
moved for the resetting of the arraignment of the accused earlier than the June 27, 2001
schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an
order declaring that the petition for bail can and should be heardbefore petitioner's arraignment
on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their

respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of
evidence on petitioner's petition for bail on May 21 to 25, 2001.
On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman
filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner
and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The
following day, petitioner filed a manifestation questioning the propriety of including Joseph
Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail.
The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's
petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending
motions as well as petitioner's motion that his petition for bail be heard as early as possible,
which motion the prosecution opposed.
On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001
Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been
resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his coaccused for trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001
Resolution.
On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner
as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions
for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent
powers to proceed with the trial of the case in the manner it determines best conducive to
orderly proceedings and speedy termination of the case, directed the other accused to
participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised
Rules of Court, whatever evidence is adduced during the bail hearing shall be considered
automatically reproduced at the trial.8
However, instead of proceeding with the bail hearing set by it on June 18, 2001, the
Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to
pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.9
On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion
for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not
again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash
the amended Information on the grounds that as against him, the amended Information does not
allege a combination or series of overt or criminal acts constitutive of plunder; as against him,
the amended Information does not allege a pattern of criminal acts indicative of an overall
unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information
to have been illegally received or collected does not constitute "ill-gotten wealth" as defined in
Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and
illegal gambling.10 By way of riposte, the prosecution objected to the holding of bail hearing until
petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioner's
motion to quash the amended Information was antithetical to his petition for bail.
The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of
petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending
incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could
resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on

June 29, 2001 a Petition for Habeas Corpus and Certiorari,docketed as G.R. No. 148468,
praying that the Court declare void the questioned orders, resolutions and actions of the
Sandiganbayan on his claim that he was thereby effectively denied of his right to due process.
Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be
declared to have waived their right to present evidence in opposition to his petition for bail; and,
premised on the failure of the People to adduce strong evidence of petitioner's guilt of plunder,
that he be granted provisional liberty on bail after due proceedings.11
Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion
praying that said court resolve his motion to fix his bail.
On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash
the amended Information. Petitioner, through counsel, received on said date a copy of said
resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the
Sandiganbayan.
On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested
to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001
Resolution denying his motion to quash and for the deferment of his arraignment. The
Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the
Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of
an interlocutory order issued by it and ordered petitioner to orally argue his motion for
reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment.
Petitioner refused to plead, impelling the court to enter a plea of not guilty for him.
On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No.
148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001
Resolution denying his motion to quash, notwithstanding the fact that material inculpatory
allegations of the amended Information against him do not constitute the crime of plunder; and
that he is charged, under the said amended Information, for more than one offense. Jose
"Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as G.R. No.
148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail.
On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as
G.R. No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied
his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion
for reconsideration of its May 31, 2001 Resolution.
Re: G.R. No. 148769
Petitioner avers that:
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION,
IN DENYING PETITIONER SERAPIO'SMOTION TO QUASH NOTWITHSTANDING THAT
I

THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER

SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.
A The Amended Information, as against petitioner Serapio, does not allege a
combination or series of overt or criminal acts constitutive of plunder.
B The Amended Information, as against petitioner Serapio, does not allege a pattern of
criminal acts indicative of an overall unlawful scheme or conspiracy.
C The money described in paragraph (a) of the Amended Information and alleged to
have been illegally received or collected does not constitute 'ill-gotten wealth' as defined
in Section 1(d), Republic Act No. 7080, as amended.
II
THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13
Petitioner asserts that, on the face of the amended Information, he is charged with plunder only
in paragraph (a) which reads:
"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY
IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT,
BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE
DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;"14
Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a
"combination or series of overt or criminal acts" constituting plunder as described in Section 1(d)
of R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal
acts." He avers that his single act of toleration or protection of illegal gambling impelled by a
single criminal resolution does not constitute the requisite "combination or series of acts" for
plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in
furtherance of said resolution turned over to and received by former President Joseph E.
Estrada "on several occasions" does not cure the defect in the amended information. Petitioner
insists that on the face of the amended Information he is charged only with bribery or illegal
gambling and not of plunder.
Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by
former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth
as defined in Section 1(d) of R.A. 7080.
We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure
provides that:
"Sec. 6 Sufficiency of complaint or information. A complaint or information is sufficient
if it states the name of the accused, the designation of the offense given by the statute;
the acts or omissions complained of as constituting the offense; the name of the

offended party; the approximate date of the commission of the offense; and the place
where the offense was committed.
When the offense was committed by more than one person, all of them shall be included
in the complaint or information."15
The acts or omissions complained or must be alleged in such form as is sufficient to enable a
person of common understanding to know what offense is intended to be charged and enable
the court to know the proper judgment. The Information must allege clearly and accurately the
elements of the crime charged. What facts and circumstances are necessary to be included
therein must be determined by reference to the definition and elements of the specific crimes.
The purpose of the requirement of alleging all the elements of the crime in the Information is to
inform an accused of the nature of the accusation against him so as to enable him to suitably
prepare for his defense.16 Another purpose is to enable accused, if found guilty, to plead his
conviction in a subsequent prosecution for the same offense.17 The use of derivatives or
synonyms or allegations of basic facts constituting the offense charged is sufficient.18
In this case, the amended Information specifically alleges that all the accused, including
petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder
"through any or a combination or a series of overt or criminal acts or similar schemes or
means." And in paragraph (a) of the amended Information, petitioner and his co-accused are
charged with receiving or collecting, directly or indirectly, on several instancesmoney in the
aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third
Division), et al.,19 we held that the word "series" is synonymous with the clause "on several
instances"; it refers to a repetition of the same predicate act in any of the items in Section 1(d)
of the law. We further held that the word "combination" contemplates the commission of at least
any two different predicate acts in any of the said items. We ruled that "plainly, subparagraph (a)
of the amended information charges accused therein, including petitioner, with plunder
committed by a series of the same predicate act under Section 1(d)(2) of the law" and that:
"x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances,
money from illegal gambling, in consideration of toleration or protection of illegal
gambling, and expressly names petitioner as one of those who conspired with former
President Estrada in committing the offense. This predicate act corresponds with the
offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x
x."20
It is not necessary to allege in the amended Information a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080
specifically provides, the same is evidentiary and the general rule is that matters of evidence
need not be alleged in the Information.21
The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount
of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended
information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act
7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information
conspired and confederated with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17.

Under the amended Information, all the accused, including petitioner, are charged of having
conspired and confabulated together in committing plunder. When two or more persons
conspire to commit a crime, each is responsible for all the acts of others. In contemplation of
law, the act of the conspirator is the act of each of them.23 Conspirators are one man, they
breathe one breath, they speak one voice, they wield one arm and the law says that the acts,
words and declarations of each, while in the pursuit of the common design, are the acts, words
and declarations of all.24
Petitioner asserts that he is charged under the amended information of bribery and illegal
gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with
the predicate acts of bribery and illegal gambling but is charged only with one crime that of
plunder:
"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE
OFFENSE
According to the accused Estradas and Edward Serapio the information charges more
than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation
of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e)
of Republic Act (RA No. 3019) and Section 7(d) of RA 6713.
This contention is patently unmeritorious. The acts alleged in the information are not
charged as separate offenses but as predicate acts of the crime of plunder.
It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not
make any express reference to any specific provision of laws, other than R.A. No. 7080,
as amended, which coincidentally may penalize as a separate crime any of the overt or
criminal acts enumerated therein. The said acts which form part of the combination or
series of act are described in their generic sense. Thus, aside from 'malversation' of
public funds, the law also uses the generic terms 'misappropriation', 'conversion' or
'misuse' of said fund. The fact that the acts involved may likewise be penalized under
other laws is incidental. The said acts are mentioned only as predicate acts of the crime
of plunder and the allegations relative thereto are not to be taken or to be understood as
allegations charging separate criminal offenses punished under the Revised Penal
Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical
Standards for Public Officials and Employees."25
This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information
that petitioner and his co-accused are charged only with one crime of plunder and not with the
predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute
acts of plunder and are not crimes separate and independent of the crime of plunder.
Resultantly then, the petition is dismissed.
Re: G.R. No. 149116
Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4,
2001 Urgent Omnibus Motion contending that:
"GROUNDS FOR THE PETITION

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND
MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY
2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED
EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW
SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO,
AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS
AGAINST PETITIONER SERAPIO."26
Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his
omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the
proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to
direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates
that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse
of discretion in charging him with plunder. He further argues that there exists no probable cause
to support an indictment for plunder as against him.27
Petitioner points out that the joint resolution of the Ombudsman does not even mention him in
relation to the collection and receipt of jueteng money which started in 199828 and that the
Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was
a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even
though the latter presented evidence that said Foundation is a bona fide and legitimate private
foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew
that the P200 million he received for the Foundation came from jueteng.30
Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received
does not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is
no evidence linking him to the collection and receipt of jueteng money;32 (3) there was no
showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of
receiving the P200 million constitutes an overt criminal act of plunder.33
Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of
evidence to support a finding of probable cause for plunder as against him,34 and hence he
should be spared from the inconvenience, burden and expense of a public trial.35
Petitioner also avers that the discretion of government prosecutors is not beyond judicial
scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable
cause to charge a person for an offense in a given case, it may do so in exceptional
circumstances, which are present in this case: (1) to afford adequate protection to the
constitutional rights of the accused; (2) for the orderly administration of justice or to avoid
oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where
the charges are manifestly false and motivated by the lust for vengeance.36 Petitioner claims
that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned
joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of
plunder and committed errors of law or irregularities which have been prejudicial to his
interest.37 He also states that during the joint preliminary investigations for the various charges
against Joseph Estrada and his associates, of which the plunder charge was only one of the
eight charges against Estrada et al., he was not furnished with copies of the other complaints

nor given the opportunity to refute the evidence presented in relation to the other seven cases,
even though the evidence presented therein were also used against him, although he was only
charged in the plunder case.38
The People maintain that the Sandiganbayan committed no grave abuse of discretion in
denying petitioner's omnibus motion. They assert that since the Ombudsman found probable
cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume
jurisdiction over the case and to proceed to try the same. They further argue that "a finding of
probable cause is merely preliminary and prefatory of the eventual determination of guilt or
innocence of the accused," and that petitioner still has the chance to interpose his defenses in a
full blown trial where his guilt or innocence may finally be determined.39
The People also point out that the Sandiganbayan did not commit grave abuse of discretion in
denying petitioner's omnibus motion asking for, among others, a reinvestigation by the
Ombudsman, because his motion for reconsideration of the Ombudsman's joint resolution did
not raise the grounds of either newly discovered evidence, or errors of law or irregularities,
which under Republic Act No. 6770 are the only grounds upon which a motion for
reconsideration may be filed.40
The People likewise insist that there exists probable cause to charge petitioner with plunder as
a co-conspirator of Joseph Estrada.41
This Court does not agree with petitioner.
Case law has it that the Court does not interfere with the Ombudsman's discretion in the
conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled:
"x x x. In the performance of his task to determine probable cause, the Ombudsman's
discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said:
'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference
in the conduct of preliminary investigations, and leaves to the investigating
prosecutor sufficient latitude of discretion in the exercise of determination of what
constitutes sufficient evidence as will establish 'probable cause' for filing of
information against the supposed offender."
In Cruz, Jr. vs. People,43 the Court ruled thus:
"Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in
assailing said findings on the contention that the Ombudsman committed a grave abuse
of discretion in holding that petitioner is liable for estafa through falsification of public
documents, petitioner is clearly raising questions of fact here. His arguments are
anchored on the propriety or error in the Ombudsman's appreciation of facts. Petitioner
cannot be unaware that the Supreme Court is not a trier of facts, more so in the
consideration of the extraordinary writ of certiorari where neither question of fact nor
even of law are entertained, but only questions of lack or excess of jurisdiction or grave
abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse
of discretion has been committed by respondents which would warrant the granting of
the writ of certiorari."

Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for
that matter committed grave abuse of discretion in issuing their resolution and joint resolution,
respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of
discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause
against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying
petitioner's motion for reinvestigation of the charges against him in the amended Information. In
its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that
probable cause exists against petitioner and his co-accused for the crime of plunder, thus:
"In the light of the foregoing and considering the allegations of the Amended Information
dated 18 April 2001 charging the accused with the offense of PLUNDER and examining
carefully the evidence submitted in support thereof consisting of the affidavits and sworn
statements and testimonies of prosecution witnesses and several other pieces of
documentary evidence, as well as the respective counter-affidavits of accused former
President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated
February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio
dated February 21, 2001, the Court finds and so holds that probable cause for the
offense of PLUNDER exists to justify issuance of warrants of arrest of accused former
President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or
Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44
Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the
Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with
Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23
and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic
complaints and evidence in support thereof were served upon all the accused.45 It was in light of
such findings that the Sandiganbayan held that there was no basis for the allegation that
accused therein (including petitioner) were deprived of the right to seek a reconsideration of the
Ombudsman's Resolution dated April 4, 2001 finding probable cause to charge them with
plunder after the conduct of preliminary investigation in connection therewith. In addition, the
Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the
Ombudsman's resolution, but failed to show in his motion that there were newly discovered
evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which
are the only grounds for which a reconsideration of the Ombudsman's resolution may be
granted.46
It bears stressing that the right to a preliminary investigation is not a constitutional right, but is
merely a right conferred by statute.47 The absence of a preliminary investigation does not impair
the validity of the Information or otherwise render the same defective and neither does it affect
the jurisdiction of the court over the case or constitute a ground for quashing the Information.48 If
the lack of a preliminary investigation does not render the Information invalid nor affect the
jurisdiction of the court over the case, with more reason can it be said that the denial of a motion
for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the
case. Neither can it be said that petitioner had been deprived of due process. He was afforded
the opportunity to refute the charges against him during the preliminary investigation.
The purpose of a preliminary investigation is merely to determine whether a crime has been
committed and whether there is probable cause to believe that the person accused of the crime
is probably guilty thereof and should be held for trial.49 As the Court held in Webb vs. De Leon,

"[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 suspect. 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.''50
Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized
to conduct preliminary investigation, courts as a rule must defer to said officer's finding and
determination of probable cause, since the determination of the existence of probable cause is
the function of the prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed
to establish that the preliminary investigation conducted by the Ombudsman was tainted with
irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported
by the facts, and that a reinvestigation was necessary.
Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for
reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its
discretion in ruling that there was no need to conduct a reinvestigation of the case.52
The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have
waived his right to ask for a preliminary investigation after he had been arraigned over his
objection and despite his insistence on the conduct of said investigation prior to trial on the
merits does not apply in the instant case because petitioner merely prayed for a reinvestigation
on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been
conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner
had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had
already denied his motion for reinvestigation as well as his motion for reconsideration thereon
prior to his arraignment.54In sum then, the petition is dismissed.
Re: G.R. No. 148468
As synthesized by the Court from the petition and the pleadings of the parties, the issues for
resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his
petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the
amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of
the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is
mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the
petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the
crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal
Case No. 26558 and should thus be released from detention via a writ of habeas corpus.
On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its
discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition
for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him
when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended,
does not require that he be arraigned first prior to the conduct of bail hearings since the latter
can stand alone and must, of necessity, be heard immediately.55 Petitioner maintains that his
arraignment before the bail hearings are set is not necessary since he would not plead guilty to
the offense charged, as is evident in his earlier statements insisting on his innocence during the
Senate investigation of the jueteng scandal and the preliminary investigation before the
Ombudsman.56 Neither would the prosecution be prejudiced even if it would present all its
evidence before his arraignment because, under the Revised Penal Code, a voluntary

confession of guilt is mitigating only if made prior to the presentation of evidence for the
prosecution,57 and petitioner admitted that he cannot repudiate the evidence or proceedings
taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court
expressly provides that evidence present during bail hearings are automatically reproduced
during the trial.58 Petitioner likewise assures the prosecution that he is willing to be arraigned
prior to the posting of a bail bond should he be granted bail.59
The People insist that arraignment is necessary before bail hearings may be commenced,
because it is only upon arraignment that the issues are joined. The People stress that it is only
when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the
charge, there would be no more need for him to file said petition. Moreover, since it is during
arraignment that the accused is first informed of the precise charge against him, he must be
arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail
hearings on the ground that he was not properly informed of the charge against him, especially
considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented
during such proceedings are considered automatically reproduced at the trial.60 Likewise, the
arraignment of accused prior to bail hearings diminishes the possibility of an accused's flight
from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an
accused escapes after he has been arraigned.61 The People also contend that the conduct of
bail hearings prior to arraignment would extend to an accused the undeserved privilege of being
appraised of the prosecution's evidence before he pleads guilty for purposes of penalty
reduction.62
Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had
been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an
arraignment is necessary before the conduct of bail hearings in petitioner's case moot, the Court
takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic
function of educating the bench and bar.63
The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to
the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as
he is deprived of his liberty by virtue of his arrest or voluntary surrender.64 An accused need not
wait for his arraignment before filing a petition for bail.
In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first
be arraigned before he may be granted bail. Lavides involved an accused charged with violation
of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse,
Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium
period to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition
of the condition that he should first be arraigned before he is allowed to post bail. We held
therein that "in cases where it is authorized, bail should be granted before arraignment,
otherwise the accused may be precluded from filing a motion to quash."66
However, the foregoing pronouncement should not be taken to mean that the hearing on a
petition for bail should at all times precede arraignment, because the rule is that a person
deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as
he is deprived of his liberty, even before a complaint or information is filed against him.67 The
Court's pronouncement in Lavides should be understood in light of the fact that the accused in
said case filed a petition for bail as well as a motion to quash the informations filed against him.
Hence, we explained therein that to condition the grant of bail to an accused on his arraignment

would be to place him in a position where he has to choose between (1) filing a motion to quash
and thus delay his release on bail because until his motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be
arraigned at once and thereafter be released on bail. This would undermine his constitutional
right not to be put on trial except upon a valid complaint or Information sufficient to charge him
with a crime and his right to bail.68
It is therefore not necessary that an accused be first arraigned before the conduct of hearings
on his application for bail. For when bail is a matter of right, an accused may apply for and be
granted bail even prior to arraignment. The ruling in Lavides also implies that an application for
bail in a case involving an offense punishable by reclusion perpetua to death may also be heard
even before an accused is arraigned. Further, if the court finds in such case that the accused is
entitled to bail because the evidence against him is not strong, he may be granted provisional
liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the
circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting
to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the
hearing of his petition for bail.
With respect to the second issue of whether petitioner may file a motion to quash during the
pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for
bail are not inconsistent, and may proceed independently of each other. While he agrees with
the prosecution that a motion to quash may in some instances result in the termination of the
criminal proceedings and in the release of the accused therein, thus rendering the petition for
bail moot and academic, he opines that such is not always the case; hence, an accused in
detention cannot be forced to speculate on the outcome of a motion to quash and decide
whether or not to file a petition for bail or to withdraw one that has been filed.69 He also insists
that the grant of a motion to quash does not automatically result in the discharge of an accused
from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised
Rules of Court.70
The Court finds that no such inconsistency exists between an application of an accused for bail
and his filing of a motion to quash. Bail is the security given for the release of a person in the
custody of the law, furnished by him or a bondsman, to guarantee his appearance before any
court as required under the conditions set forth under the Rules of Court.71 Its purpose is to
obtain the provisional liberty of a person charged with an offense until his conviction while at the
same time securing his appearance at the trial.72 As stated earlier, a person may apply for bail
from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.73
On the other hand, a motion to quash an Information is the mode by which an accused assails
the validity of a criminal complaint or Information filed against him for insufficiency on its face in
point of law, or for defects which are apparent in the face of the Information.74 An accused may
file a motion to quash the Information, as a general rule, before arraignment.75
These two reliefs have objectives which are not necessarily antithetical to each other. Certainly,
the right of an accused right to seek provisional liberty when charged with an offense not
punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense
punishable by such penalties but after due hearing, evidence of his guilt is found not to be
strong, does not preclude his right to assail the validity of the Information charging him with such
offense. It must be conceded, however, that if a motion to quash a criminal complaint or
Information on the ground that the same does not charge any offense is granted and the case is

dismissed and the accused is ordered released, the petition for bail of an accused may become
moot and academic.
We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for
bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial
of the said case as against former President Joseph E. Estrada be heard jointly.
Petitioner argues that the conduct of joint bail hearings would negate his right to have his
petition for bail resolved in a summary proceeding since said hearings might be converted into a
full blown trial on the merits by the prosecution.76
For their part, the People claim that joint bail hearings will save the court from having to hear the
same witnesses and the parties from presenting the same evidence where it would allow
separate bail hearings for the accused who are charged as co-conspirators in the crime of
plunder.77
In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate
in the bail hearings, the Sandiganbayan explained that the directive was made was in the
interest of the speedy disposition of the case. It stated:
" x x x The obvious fact is, if the rest of the accused other than the accused Serapio
were to be excused from participating in the hearing on the motion for bail of accused
Serapio, under the pretext that the same does not concern them and that they will
participate in any hearing where evidence is presented by the prosecution only if and
when they will already have filed their petitions for bail, or should they decide not to file
any, that they will participate only during the trial proper itself, then everybody will be
faced with the daunting prospects of having to go through the process of introducing the
same witness and pieces of evidence two times, three times or four times, as many
times as there are petitions for bail filed. Obviously, such procedure is not conducive to
the speedy termination of a case. Neither can such procedure be characterized as an
orderly proceeding."78
There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of
the Sandiganbayan governing the hearings of two or more petitions for bail filed by different
accused or that a petition for bail of an accused be heard simultaneously with the trial of the
case against the other accused. The matter of whether or not to conduct a joint hearing of two
or more petitions for bail filed by two different accused or to conduct a hearing of said petition
jointly with the trial against another accused is addressed to the sound discretion of the trial
court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the
Court will not interfere with the exercise by the Sandiganbayan of its discretion.
It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into
account not only the convenience of the State, including the prosecution, but also that of the
accused and the witnesses of both the prosecution and the accused and the right of accused to
a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the
factual and legal issues involving petitioner and the other accused. After all, if this Court may
echo the observation of the United States Supreme Court, the State has a stake, with every
citizen, in his being afforded our historic individual protections, including those surrounding
criminal prosecutions. About them, this Court dares not become careless or complacent when
that fashion has become rampant over the earth.79

It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail
hearing, the court is to conduct only a summary hearing, meaning such brief and speedy
method of receiving and considering the evidence of guilt as is practicable and consistent with
the purpose of the hearing which is merely to determine the weight of evidence for purposes of
bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be
given to the evidence against the accused, nor will it speculate on the outcome of the trial or on
what further evidence may be offered therein. It may confine itself to receiving such evidence as
has reference to substantial matters, avoiding unnecessary thoroughness in the examination
and cross-examination of witnesses, and reducing to a reasonable minimum the amount of
corroboration particularly on details that are not essential to the purpose of the hearing.
A joint hearing of two separate petitions for bail by two accused will of course avoid duplication
of time and effort of both the prosecution and the courts and minimizes the prejudice to the
accused, especially so if both movants for bail are charged of having conspired in the
commission of the same crime and the prosecution adduces essentially the same evident
against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of
petitioner with the trial of the case against former President Joseph E. Estrada is an entirely
different matter. For, with the participation of the former president in the hearing of petitioner's
petition for bail, the proceeding assumes a completely different dimension. The proceedings will
no longer be summary. As against former President Joseph E. Estrada, the proceedings will be
a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our
ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada
can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the
amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to
(d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we
hold that petitioner can only be charged with having conspired with the other co-accused named
in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances,
money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal
gambling.81 Thus, with respect to petitioner, all that the prosecution needs to adduce to prove
that the evidence against him for the charge of plunder is strong are those related to the alleged
receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the
amended Information. With the joinder of the hearing of petitioner's petition for bail and the trial
of the former President, the latter will have the right to cross-examine intensively and
extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If
petitioner will adduce evidence in support of his petition after the prosecution shall have
concluded its evidence, the former President may insist on cross-examining petitioner and his
witnesses. The joinder of the hearing of petitioner's bail petition with the trial of former President
Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the
issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his
petition is denied by the respondent court. The indispensability of the speedy resolution of an
application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations,
thus:
"For, if there were any mode short of confinement which would with reasonable certainty
insure the attendance of the accused to answer the accusation, it would not be justifiable
to inflict upon him that indignity, when the effect is to subject him in a greater or lesser
degree, to the punishment of a guilty person, while as yet it is not determined that he has
not committed any crime."82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to
proceed with the trial of the case in the manner it determines best conducive to orderly
proceedings and speedy termination of the case,"83 the Court finds that it gravely abused its
discretion in ordering that the petition for bail of petitioner and the trial of former President
Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged
in its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to
have the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only to
make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose
"Jinggoy" Estrada and the trial as against former President Joseph E. Estrada should be held
simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial of the
case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect
allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In
fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a
simultaneous hearing of petitioner's petition for bail with the trial of the case against former
President Joseph E. Estrada on its merits.
With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by
filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the
delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and
pleadings with the Sandiganbayan.85 They assert that they filed the motion for joint bail hearing
and motion for earlier arraignment around the original schedule for the bail hearings which was
on May 2125, 2001.86
They argue further that bail is not a matter of right in capital offenses.87 In support thereof, they
cite Article III, Sec 13 of the Constitution, which states that
"All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpusis suspended. Excessive
bail shall not be required."88
The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide:
"Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life
imprisonment, not bailable. No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution.
Sec. 4 Bail, a matter of right, exception. All persons in custody shall be admitted to
bail as a matter of right, with sufficient sureties, or released on recognizance as
prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua or life imprisonment."89
Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to
obtain provisional liberty on bail pending the judgment of his case. However, as to such person,
bail is not a matter of right but is discretionary upon the court.90 Had the rule been otherwise, the
Rules would not have provided for an application for bail by a person charged with a capital
offense under Rule 114, Section 8 which states:

"Sec. 8 Burden of proof in bail application. At the hearing of an application for bail filed
by a person who is in custody for the commission of an offense punishable by
death, reclusion perpetua, or life imprisonment, the prosecution has the burden of
showing that the evidence of guilt is strong. The evidence presented during the bail
hearing shall be considered automatically reproduced at the trial but, upon motion of
either party, the court may recall any witness for additional examination unless the latter
is dead, outside the Philippines, or otherwise unable to testify."91
Under the foregoing provision, there must be a showing that the evidence of guilt against a
person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an
application for bail by the person charged with a capital offense, a hearing thereon must be
conducted, where the prosecution must be accorded an opportunity to discharge its burden of
proving that the evidence of guilt against an accused is strong.92 The prosecution shall be
accorded the opportunity to present all the evidence it may deem necessary for this
purpose.93 When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the
court's duty to deny the application for bail. However, when the evidence of guilt is not strong,
bail becomes a matter of right.94
In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings.
Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for
purposes of his bail application and that the Sandiganbayan has refused to grant a hearing
thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly,
its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted
that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for
bail but the same were reset due to pending incidents raised in several motions filed by the
parties, which incidents had to be resolved by the court prior to the bail hearings. The bail
hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did
not push through due to the filing of this petition on June 29, 2001.
The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable
solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as
is evident from the following list of motions filed by him and by the prosecution:
Motions filed by petitioner:

Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for
reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2)
conduct a determination of probable cause as would suggest the issuance of house
arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings
pending determination of probable cause;

Motion for Early Resolution, dated May 24, 2001;

Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest

for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001;

Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May
11, 2001;


Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of
May 18, 2001 be set aside and bail hearings be set at the earliest possible time;

Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27,
2001;

Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13,
2001, praying that he be allowed to file a Motion for Reinvestigation; and

Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution:

Motion for Earlier Arraignment, dated May 8, 2001;96

Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada
and Edward Serapio, dated May 8, 2001;97

Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to

Adjust Earlier Arraignment, dated May 25, 2001;98 and

Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated

June 19, 2001.99
The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their
filing of the following motions:

Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada,
assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information
be quashed;

Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada,
praying that he be (1)excluded from the Amended Information for lack of probable cause;
(2) released from custody; or in the alternative, (3) be allowed to post bail;

Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by
Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the
pendency of the case;

Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy
Estrada;

Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by
Joseph and Jinggoy Estrada;

Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by

reinvestigation of the case by the Ombudsman or the outright dismissal of the case;


Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy
Estrada, requesting for five (5) days within which to respond to the Opposition to Motion
to Quash in view of the holidays and election-related distractions;

Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by
Joseph Estrada;

Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001,
filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest;

Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and
Jinggoy Estrada;

Summation regarding house arrest, dated May 23, 2001, filed by Joseph and
Jinggoy Estrada;

Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;

Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying
that they be allowed to be confined in Tanay;

Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada;

Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada,
seeking reconsideration of denial of requests for house arrest, for detention in Tanay or
Camp Crame; motion for inhibition of Justice Badoy;

Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro
Manila, dated June 28, 2001, filed by Jinggoy Estrada;

Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy
Estrada, praying that the resolution compelling them to be present at petitioner Serapio's
hearing for bail be reconsidered;

Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;

Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy
Estrada stating that Bishop Teodoro Bacani favors their house arrest;

Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving
their right to be present at the June 18 and 21, 2001 bail hearings and reserving their
right to trial with assessors;

Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and
Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by
Joseph and Jinggoy Estrada;

Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed
by Jinggoy Estrada;


Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates
for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag
order of prosecution witnesses, availing of production, inspection and copying of
documents, requesting for status of alias case; and

Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for
permission to attend some municipal affairs in San Juan, Metro Manila.100
Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to
adduce evidence in opposition to an application for bail by an accused charged with a capital
offense, the trial court is still under duty to conduct a hearing on said application.101 The
rationale for such requirement was explained inNarciso vs. Sta. Romana-Cruz (supra),
citing Basco vs. Rapatalo:102
"When the grant of bail is discretionary, the prosecution has the burden of showing that
the evidence of guilt against the accused is strong. However, the determination of
whether or not the evidence of guilt is strong, being a matter of judicial discretion,
remains with the judge. This discretion by the very nature of things, may rightly be
exercised only after the evidence is submitted to the court at the hearing. Since the
discretion is directed to the weight of the evidence and since evidence cannot properly
be weighed if not duly exhibited or produced before the court, it is obvious that a proper
exercise of judicial discretion requires that the evidence of guilt be submitted to the
court, the petitioner having the right of cross-examination and to introduce his own
evidence in rebuttal."103
Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a
hearing of his application for bail and resolve the same in his favor. Even then, there must first
be a finding that the evidence against petitioner is not strong before he may be granted bail.
Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he
contends that he is entitled to the issuance of said writ because the State, through the
prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail
hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for
the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a
seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail
hearings. Specifically, the prosecution moved for petitioner's arraignment before the
commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada
and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing;
manifested that it would present its evidence as if it is the presentation of the evidence in chief,
meaning that the bail hearings would be concluded only after the prosecution presented its
entire case upon the accused; and argued that petitioner's motion to quash and his petition for
bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two
remedies.104 He further claims that the Sandiganbayan, through its questioned orders and
resolutions postponing the bail hearings effectively denied him of his right to bail and to due
process of law.105
Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the
bail hearings which it had earlier set did not render moot and academic the petition for issuance
of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of
petitioner's right to bail.106 He argues further that the fact that he was arrested and is detained

pursuant to valid process does not by itself negate the efficacy of the remedy ofhabeas
corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held
thathabeas corpus extends to instances where the detention, while valid from its inception, has
later become arbitrary.108
However, the People insist that habeas corpus is not proper because petitioner was arrested
pursuant to the amended information which was earlier filed in court,109 the warrant of arrest
issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.110
As a general rule, the writ of habeas corpus will not issue where the person alleged to be
restrained of his liberty in custody of an officer under a process issued by the court which
jurisdiction to do so.111 In exceptional circumstances, habeas corpus may be granted by the
courts even when the person concerned is detained pursuant to a valid arrest or his voluntary
surrender, for this writ of liberty is recognized as "the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action" due to "its ability to cut through
barriers of form and procedural mazes."112 Thus, in previous cases, we issued the writ where the
deprivation of liberty, while initially valid under the law, had later become invalid,113 and even
though the persons praying for its issuance were not completely deprived of their liberty.114
The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The
general rule thathabeas corpus does not lie where the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court which had jurisdiction to
issue the same115 applies, because petitioner is under detention pursuant to the order of arrest
issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the
amended information for plunder against petitioner and his co-accused. Petitioner had in fact
voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant
for his arrest had been issued.
The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty
which was initially valid has become arbitrary in view of subsequent developments finds no
application in the present case because the hearing on petitioner's application for bail has yet to
commence. As stated earlier, they delay in the hearing of petitioner's petition for bail cannot be
pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is
partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for
asserting one's right to bail.117 It cannot be availed of where accused is entitled to bail not as a
matter of right but on the discretion of the court and the latter has not abused such discretion in
refusing to grant bail,118 or has not even exercised said discretion. The proper recourse is to file
an application for bail with the court where the criminal case is pending and to allow hearings
thereon to proceed.
The issuance of a writ of habeas corpus would not only be unjustified but would also preempt
the Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of
petitioner is to forthwith proceed with the hearing on his application for bail.
IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:
1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of
respondent Sandiganbayan subject of said petitions are AFFIRMED; and

2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent
Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail
and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET
ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE.
No costs.
SO ORDERED.
Davide, Jr., C .J ., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez,
Corona, Carpio-Morales and Azcuna, JJ ., concur.
Vitug, J ., see separate opinion.
Ynares-Santiago, J ., joins the dissent of Justice Sandoval-Gutierrez.
Sandoval-Gutierrez, J ., see dissenting opinion.
Carpio, J ., no part, prior inhibition in plunder cases.

Separate Opinions
VITUG, J.:
I fully subscribe to the ponencia in G.R. No. 148468 that
a) The arraignment of an accused is not a prerequisite to the conduct of hearings on a
petition for bail. A person is allowed to petition for bail as soon as he is deprived of his
liberty by virtue of his arrest or voluntary surrender.
b) There is no inconsistency between an application of an accused for bail and his filing
of a motion to quash, these two reliefs not being necessarily antithetical to each other.
c) The joinder of hearing of herein petitioner's bail petition with the trial of former
President Joseph Estrada indeed could unduly delay the determination of the issue of
the right of petitioner to obtain provisional liberty.
d) The claim of petitioner that the prosecution has refused to present evidence to prove
his guilt for purposes of his bail application and that the Sandiganbayan has refused to
grant a hearing thereon hardly finds substantiation. Neither has the prosecution waived,
expressly or even impliedly, its right to adduce evidence in opposition to the petition for
bail of petitioner.
e) There is no basis for the issuance of a writ of habeas corpus in favor of
petitioner. Habeas corpus does not lie where the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court having jurisdiction
thereover.
In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to those
posed in G.R. No. 148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan [Third Division],

People of the Philippines and Office of the Ombudsman," decided by the Court on 26 February
2002. Petitioner Atty. Edward Serapio stands indicted with the former President, Mr. Joseph E.
Estrada, for plunder. Petitioner is charged with exactly the same degree of culpability as that of
Mr. Jose "Jinggoy" Estrada, thusly:
"AMENDED INFORMATION
"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the
Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada a.k.a.'ASIONG SALONGA' and a.k.a. 'JOSE
VELARDE', TOGETHER WITH Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the
crime of Plunder, defined and penalized under R.A. 7080, as amended by Sec. 12 of
R.A. 7659, committed as follows:
"That during the period from June, 1998 to January 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by himself, AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF
HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS BY TAKING
UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR
TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND
TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR a series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
"(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00) MORE
OR LESS, FROM ILLEGAL GAMBLING, IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT BY HIMSELF AND/OR in connivance with co-accused
CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte,
Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration
OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"
Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his motion to
quash the Amended Information on the ground that, among other things, it alleges, at least as to
him, neither a combination or series of overt acts constitutive of plunder nor a pattern of criminal
acts indicative of an overall unlawful scheme in conspiracy with others. In G.R. No. 149116,
petitioner claims that the Sandiganbayan has committed grave abuse of discretion in denying

his omnibus motion to hold in abeyance the issuance of a warrant for his arrest, as well as the
proceedings in Criminal Case No. 26558), to conduct a determination of probable cause, and to
direct the Ombudsman to conduct a reinvestigation of the charges against him.
In my separate opinion in G.R. No. 148965, which I now reiterate, I have said:
"Plunder may be committed by any public officer either by himself or "in connivance" with
other persons; it may also be committed by a person who participates with a public
officer in the commission of an offense contributing to the crime of plunder. A person may
thus be held accountable under the law by connivingwith the principal co-accused or
by participating in the commission of "an offense" contributing to the crime of plunder.
The term "in connivance" would suggest an agreement or consent to commit an unlawful
act or deed with or by another, to connive being to cooperate secretly or privily with
another.1 Upon the other hand, to participate is to have a part or a share in conjunction
with another of the proceeds of the unlawful act or deed.
"The amended Information alleged "connivance" and would assume that petitioner and
his co-accused had a common design in perpetrating the violations complained of
constitutive of "plunder."
The Supreme Court in Estrada vs. Sandiganbayan2 has declared the anti-plunder law
constitutional for being neither vague nor ambiguous on the thesis that the terms "series" and
"combination" are not unsusceptible to firm understanding. "Series" refers to two or more
acts falling under the same category of the enumerated acts provided in Section 1(d)3 of the
statute; "combination" pertains to two or more acts falling under at least two separate categories
mentioned in the same law.4
"xxx

xxx

xxx

"The government argues that the illegal act ascribed to petitioner is a part of the chain
that links the various acts of plunder by the principal accused. It seems to suggest that a
mere allegation of conspiracy is quite enough to hold petitioner equally liable with the
principal accused for the latter's other acts, even if unknown to him, in paragraph (a) of
the indictment. This contention is a glaring bent. It is, to my mind, utterly unacceptable,
neither right nor just, to cast criminal liability on one for the acts or deeds of plunder that
may have been committed by another or others over which he has not consented or
acceded to, participated in, or even in fact been aware of. Such vicarious criminal liability
is never to be taken lightly but must always be made explicit not merely at the trial but
likewise, and no less important, in the complaint or information itself in order to meet the
fundamental right of an accused to be fully informed of the charge against him. It is a
requirement that cannot be dispensed with if he were to be meaningfully assured that he
truly has a right to defend himself. Indeed, an unwarranted generalization on the scope
of the anti-plunder law would be a fatal blow to maintaining its constitutionality given
the ratio decidendi in the pronouncement heretofore made by the Court upholding the
validity of the statute.
"Given the foregoing exegesis, the petitioner, although ineffectively charged in the
Amended Information for plunder, could still be prosecuted and tried for a lesser offense,
for it is a recognized rule that an accused shall not be discharged even when a mistake
has been made in charging the proper offense if he may still be held accountable for any

other offense necessarily included in the crime being charged. It is, however, the
Sandiganbayan, not this Court, which must make this determination on the basis of its
own findings."
WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No. 148769 and
G.R. No. 149116, I vote for the remand of the case to the Sandiganbayan for further
proceedings on the bail application of petitioner and urge that the incident be resolved with
dispatch.

Dissenting Opinion
SANDOVAL-GUTIERREZ, J.,:
Once again, the Amended Information dated April 18, 2001 in Criminal Case No. 265581 is
subjected to judicial scrutiny, this time, via a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure (G.R. No. 148769) filed by petitioner Edward S. Serapio. For easy
reference, let me quote the Amended Information, thus:
"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the
Ombudsman, hereby accuses former President of the Republic of the Philippines,
Joseph Ejercito Estrada a.k.a. 'Asiong Salonga'and a.k.a. 'Jose Velarde,' together with
Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, and John Does & Jane Does, of the crime of Plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as
follows:
'That during the period from June 1998 to January, 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada,
then a public officer, being then the President of the Republic of the Philippines,
by himself and/or in connivance/conspiracy with his co-accused, who are
members of his family, relatives by affinity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his official
position, authority, relationship, connection, or influence, did then and there
willfully, unlawfully and criminally amass, accumulate and acquire by himself,
directly or indirectly, ill-gotten wealth in the aggregate amount or total value of
four billion ninety seven million eight hundred four thousand one hundred seventy
three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby
unjustly enriching himself or themselves at the expense and to the damage of the
Filipino people and the Republic of the Philippines through any or a combination
or a series of overt OR criminal acts, or similar schemes or means, described as
follows:
a) by receiving or collecting, directly or indirectly, an aggregate amount of Five
Hundred Forty-Five Million Pesos (P545,000,000.00), more or less, from illegal
gambling in the form of gift, share, percentage kickback or any form of pecuniary
benefit, by himself and/or in connivance with co-accused Charlie "Atong" Ang,

Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES
AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
b) by diverting, receiving, misappropriating, converting or misusing directly or
indirectly, for his or their personal gain and benefit, public funds in the amount of
one hundred thirty million pesos (P130,000,000.00) more or less, representing a
portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco excise tax
share allocated for the Province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia
Rajas, and other John Does and Jane Does;
c) by directing, ordering and compelling, for his personal gain and benefit, the
Government Service Insurance System (GSIS) to purchase, 351,878,000 shares
of stock, more or less and the Social Security System (SSS), 329,855,000 shares
of stock, more or less, of the Belle Corporation in the amount of more or less One
Billion One Hundred Two Million Nine Hundred Sixty Five Thousand Six Hundred
Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or less Seven
Hundred Forty Four Million Six Hundred Twelve Thousand Four Hundred Fifty
Pesos (P744,612,450.00], respectively, or a total of a more or less One Billion
Eight Hundred Forty Seven Million Five Hundred Seventy Eight Thousand Fifty
Seven Pesos and fifty centavos [P1,847,578,057.50]; and by collecting or
receiving, directly or indirectly, by himself and/or in connivance with John Does
and Jane Does, Commissions or percentages by reason of said purchases of
shares of stock in the amount of One Hundred Eighty-Nine Million Seven
Hundred Thousand Pesos [P189,700,000], more or less, from the Belle
Corporation, which became part of the deposit in the Equitable-PCI Bank under
the account of "Jose Velarde";
d) by unjustly enriching himself FROM COMMISSIONS, gifts, shares,
percentages, kickbacks, or any form of pecuniary benefits, in connivance with
John Does and Jane Does, in the amount of more or less Three Billion Two
Hundred Thirty-Three Million One Hundred Four Thousand One Hundred
Seventy Three Pesos and Seventeen Centavos [P3,233,104,173.17] and
depositing the same under his account name "Jose Velarde" at the Equitable-PCI
Bank.
CONTRARY TO LAW.'"2
In G.R. No. 148965,3 I stood apart from the majority of my brethren in denying the Petition for
Certiorari and Mandamus filed by Jose "Jinggoy," E. Estrada against the Sandiganbayan,
People of the Philippines and Office of the Ombudsman. I articulated in my Dissent the various
reasons why I could not join the majority in sustaining the afore-quoted Amended Information.
Now, I am taking this second occasion to reiterate them, hoping that the majority will have a
change of mind and resolve to re-examine its Decision.
Consistent with my previous Dissent, it is my view that petitioner Edward S. Serapio, like Jose
"Jinggoy" Estrada, may not be validly prosecuted for the crime of plunder under the Amended
Information.

To be forthright, the obvious error in the foregoing Information lies in the fact that it joined
together four distinct conspiracies in a single continuing conspiracy of plunder and
indiscriminately accused all the persons who participated therein of the said resulting crime.
Simply put, the Amended Information is a mere fusion of separate conspiracies. It is akin to that
of "separate spokes meeting at a common center, without the rim of the wheel to enclose the
spokes." This is legally impermissible. Such kind of information places the accused's primary
right to be informed of the nature and cause of the accusation against him in jeopardy.
I must reiterate what I have pointed out in G.R. No. 148965.
There exists a distinction between separate conspiracies, where certain parties are common to
all the conspiracies, but with no overall goal or common purpose; and one overall continuing
conspiracy with various parties joining and terminating their relationship at different
times.4 Distinct and separate conspiracies do not, in contemplation of law, become a single
conspiracy merely because one man is a participant and key figure in all the separate
conspiracies.5 The present case is a perfect example. The fact that former President Estrada is
a common key figure in the criminal acts recited under paragraphs (a), (b), (c) and (d) of the
Amended Information does not automatically give rise to a single continuing conspiracy of
plunder, particularly, with respect to petitioner Serapio whose participation is limited to
paragraph (a). To say otherwise is to impute to petitioner or to any of the accused the acts and
statements of the others without reference to whether or not their acts are related to one
scheme or overall plan. It could not have been the intention of the Legislature, in drafting R.A.
No. 7080, to authorize the prosecution to chain together four separate and distinct crimes when
the only nexus among them lies in the fact that one man participated in all. There lies a great
danger for the transference of guilt from one to another across the line separating conspiracies.
The principle laid down above is no longer novel in other jurisdictions. Various American
decisions had expounded on the matter. In Battle vs. State,6 a judgment of conviction was
reversed on the ground that the allegation of conspiracy in the indictment was insufficient, thus:
"Among the requirements for the allegations in an indictment to be sufficient are (1) the
specificity test, i.e., does the indictment contain all the elements of the offense pleaded
in terms sufficient enough to apprise the accused of what he must be prepared to meet,
and (2) is the indictment pleaded in such a manner as to enable the defendant to plead
prior jeopardy as a defense if additional charges are brought for the same offense. x x x
Further, our Supreme Court has recently considered the criteria for sufficiency in
conspiracy cases in Goldberg vs. State, 351 So. 2d 332 (Fla. 1977),7 as this court has
likewise done in State vs. Giardino, 363 So. 2d 201 (Fla. 3d DCA 1978).8 Applying the
principles developed in the above cases to the instant cause, we are of the opinion that
Count I of the indictment was insufficient. It is impossible to ascertain whether the
indictment charges that appellant conspired with Acuna and Hernandez jointly or
severally, or whether appellant conspired entirely with persons unknown. Also, it is
impossible to tell whether appellant met with Acuna and Hernandez jointly or severally,
or whether appellant conspired entirely with persons unknown. Also, it is impossible to
tell whether appellant met with Acuna and Hernandez jointly or severally, or whether
appellant met with persons unknown to plan the murder of Torres. Because appellant
was left to guess who these other conspirators might be and because the vagueness of
the allegations did nothing to protect him from further prosecution, we are of the opinion
that they were too vague and indefinite to meet the requirements set forth above.

Accordingly, in our opinion the trial court erred in failing to dismiss Count I of the
indictment for conspiracy against appellant." (Footnote supplied)
In State vs. Harkness,9 a demurrer to the information was sustained on the ground that an
information charging two separate conspiracies is bad for misjoinder of parties where the only
connection between the two conspiracies was the fact that one defendant participated in both.
The Supreme Court of Washington ruled:
"[W]e see no ground upon which the counts against both the Harknesses can be
included in the same information. While they are charged with crimes of the same class,
the crimes are alleged to have been committed independently and at different times. The
crimes are related to each other only by the fact that the prescriptions used were issued
by the same physician. x x x We find ourselves unable to agree with the appellant that
the misjoinder is cured by the conspiracy charge. It is doubtful if the count is sufficient in
form to charge a conspiracy. x x x Reference is made in the count, to counts one to six,
inclusive, for a specification of the acts constituting the conspiracy. When these counts
are examined, it will be seen that they charge separate substantive offenses without
alleging any concert of action between the Harknesses."
Thus, when certain persons unite to perform certain acts, and some of them unite with others
who are engaged in totally different acts, it is error to join them in an information. 10 Otherwise
stated, defendants charged with two separate conspiracies having one common participant are
not, without more, properly joined, and similarity of acts alone is insufficient to indicate that
series of acts exist.11 Joinder may be permitted when the connection between the alleged
offenses and the parties is the accused's awareness of the identity and activity of the other
alleged participants.12 There must be a showing of one overall common goal to which the
participants bind themselves.
Apparently, the factual recitals of the Amended Information fail to sufficiently allege that
petitioner Serapio deliberately agreed or banded with the rest of the accused for the purpose of
committing Plunder. There is no averment that he conspired with them in committing the crimes
specified in paragraphs (b), (c) and (d) of the Amended Information, such as misappropriation of
the tobacco excise tax share of Ilocos Sur; receipt of commissions by reason of the purchase of
shares of stock from the Belle Corporation; and acquisition of unexplained wealth.
To my mind, the Amended Information only makes out a case of bribery "in toleration or
protection of illegal gambling." While he is being charged for the "crime of Plunder, defined and
penalized under R.A. No. 7080," his alleged participation therein is limited to what is specified
under paragraph (a) of the Amended Information.
The essence of the law on plunder lies in the phrase "combination or series of overt or criminal
acts." The determining factor of R.A. No. 7080, as can be gleaned from the Record of the
Senate, is the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to
amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos,
a person cannot be prosecuted for the crime of plunder if he performs only a single criminal
act.13
It is the majority's position that since there is an allegation of conspiracy at the inception of the
Amended Information, the criminal acts recited in paragraphs (b), (c) and (d) pertain to petitioner

as well, the act of one being the act of all. This is an obvious non sequitur. Even the Amended
Information, on its face, cannot admit such a construction.
First, it bears noting that the Amended Information named the co-conspirators of former
President Estrada individually and separately in each of the four predicate
offenses. Paragraph (a) named petitioner Jose "Jinggoy" Estrada, "Atong" Ang, Yolanda T.
Ricaforte, Edward Serapio, John Does and Jane Does as co-conspirators in the crime of
bribery. Paragraph (b) named Alma Alfaro, "Atong" Ang, Eleuterio Ramos Tan, Delia Rajas and
other John Does and Jane Does as co-conspirators in the crime of malversation of public funds
representing a portion of the tobacco excise tax share allocated to the Province of Ilocos
Sur. Paragraph (c) and (d) named John Does and Jane Does as co-conspirators in the
purchase of the Belle's shares and in the acquisition of ill-gotten wealth in the amount of
P3,233,104,173.17 under the account name "Jose Velarde."
Is it logical to infer from the Amended Information the existence of a single continuing
conspiracy of plunder when the factual recital thereof individually and separately named the coconspirators in each of the predicate offenses? I must reecho my answer in G.R. No. 148965,
i.e., an outright no. A single agreement to commit several crimes constitutes one conspiracy. By
the same reasoning, multiple agreements to commit separate crimes constitute multiple
conspiracies. To individually and separately name the co-conspirators in each of the predicate
offenses is to reveal the absence of a common design. The explicit clustering of co-conspirators
for each predicate offense thwarts the majority's theory of a single continuing conspiracy of
plunder. It reveals a clear line segregating each predicate offense from the other. Thus, the act
of one cannot be considered as the act of all.
Second, the allegation of conspiracy at the inception of the Amended Information basically
pertains to former President Estrada as the common key figure in the four predicate offenses.
Allow me to quote the pertinent portion, thus:
"That during the period from June 1998 to January, 2001, in the Philippines, and within
the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public
officer, being then the President of the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his family, relatives by
affinity or consanguinity, business associates, subordinates and/or other persons, by
taking undue advantage of his official position, authority, relationship, connection, or
influence, did then and there willfully, unlawfully and criminally amass, accumulate and
acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total
value of four billion ninety seven million eight hundred four thousand one hundred
seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less,
thereby unjustly enriching himself or themselves at the expense and to the damage of
the Filipino people and the Republic of the Philippines through any or a combination or a
series of overt OR criminal acts, or similar schemes or means, described as follows: x x
x."
From the foregoing allegation, it can be reasonably construed that former President Estrada
conspired with all the accused in committing the four predicate offenses. However, whether his
co-accused conspired with him jointly orindividually for the commission of all, or some or one of
the predicate offenses is a question that may be answered only after a reading of the entire
Amended Information. I note with particularity the phrase in the Amended Information stating,
"by himself and/or14 in connivance/conspiracy with his co-accused." The phrase indicates that

former President Estrada did not, in all instances, act in connivance with the other accused. At
times, he acted alone. Consequently, as alleged in the succeeding paragraphs (a), (b), (c) and
(d), his co-accused conspired with him individually and not jointly. Petitioner Serapio cannot
therefore be associated with the former President in all the latter's alleged criminal activities.
Of course, I cannot ignore the use of the phrase "on several instances" and "aggregate amount
of P545,000,000.00" in paragraph (a) of the Amended Information. At first glance, this may be
construed as attributing to petitioner Serapio a "combination or series of overt act." However, a
reading of the Amended Information, in its entirety, readily reveals that the said phrases pertain
to former President Estrada, the principal accused in the case. Allegedly, the former President,
on several instances, received or collected an aggregate amount of P545,000,000.00, more or
less from illegal gambling in the form of gift, share, percentage, kickback or any form of
pecuniary benefit "by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose
"Jinggoy" Estrada, Yolanda T. Ricaforte, petitioner Serapio and John Does and Jane Does. We
have already explained the implication of the phrase "by himself and/or in
connivance." Consequently, the acts committed by former President Estrada on the several
instances referred to cannot automatically be attributed to petitioner.
Third, petitioner's criminal intent to advance the unlawful object of the conspiracy (plunder) is
not sufficiently alleged in the factual recitals of the Amended Information. Corollarily, the intent
required is the intent to advance or further the unlawful object of the conspiracy.15 This means
that so far as the relevant circumstances are concerned, both parties to the agreement must
have mens rea.16 There is no conspiracy to commit a particular crime unless the parties to the
agreement intend that the consequences, which are ingredients of that crime, shall be
caused.17 In the present case, while there is an allegation that former President Estrada
"willfully, unlawfully and criminally"18 amassed ill-gotten wealth in the aggregate amount of
P4,097,804,173.17, none is mentioned with regard to petitioner. There is nothing in the
Amended Information that suggests whether or not petitioner has the mens rea to engage in the
commission of the serious crime of plunder. Indeed, there are no allegations that he "willfully,
unlawfully or criminally" joined with the rest of the accused to amass ill-gotten wealth. This
renders the Amended Information fatally defective with respect to petitioner. Every crime is
made up of certain acts and intent: these must be set forth in the complaint with reasonable
particularity.19 Imperatively, an information charging that a defendant conspired to commit an
offense must allege that the defendant agreed with one or more persons to commit the
offense.20
And fourth, the statement in the accusatory portion of the Amended Information cumulatively
charging all the accused of the crime of Plunder cannot be given much weight in determining
the nature of the offense charged. It is a jurisprudentially-embedded rule that what determines
the "nature and cause of accusation" against an accused is the crime described by the facts
stated in the information or complaint and not that designated by the fiscal in the preamble
thereof.21 In the recent En Banc ruling in Lacson vs. Executive Secretary,22 citing the 1954 case
of People vs. Cosare23 and People vs. Mendoza,24 this Court held:
"The factor that characterizes the charge is the actual recital of the facts. The real nature
of the criminal charge is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been violated, they
being conclusions of law, but by the actual recital of facts in the complaint or
information."25

Thus, in the event that the appellation of the crime charged, as determined by the public
prosecutor, does not exactly correspond to the actual crime constituted by the criminal acts
described in the information to have been committed by the accused, what controls is the
description of the said criminal acts and not the technical name of the crime supplied by the
public prosecutor.26
There is a caveat that an information under the broad language of a general conspiracy statute
must be scrutinized carefully as to each of the charged defendants because of the possibility,
inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as
the culpable.27
Let it be stressed that guilt should remain individual and personal, even as respect conspiracies.
It is not a matter of mass application. There are times when of necessity, because of the nature
and scope of a particular federation, large numbers of persons taking part must be tried by their
conduct. The proceeding calls for the use of every safeguard to individualize each accused in
relation to the mass. Criminal they may be, but it is not the criminality of mass conspiracy. They
do not invite mass trial by their conduct. True, this may be inconvenient for the prosecution. But
the government is not one of mere convenience or efficiency. It too has a stake with every
citizen, in his being afforded the individual protections, including those surrounding criminal
trials.28 The shot-gun approach of a conspiracy charge could amount to a prosecution for
general criminality resulting in a finding of guilt by association. The courts should, at all times,
guard against this possibility so that the constitutional rights of an individual are not curbed or
clouded by the web of circumstances involved in a conspiracy charge.29
Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of habeas corpus.
The Amended Information being fatally defective, it is imperative that petitioner be dropped from
the Amended Information and proceeded against under a new one charging the proper offense.
In the absence of a standing case against him, the issuance of a writ of habeas corpus is in
order."30
WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No. 148468.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. Nos. 92319-20 October 2, 1990

EDUARDO M. COJUANGCO, JR., petitioner,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) AND HON. FRANCISCO
I. CHAVEZ in his capacity as Solicitor General, and the HON. OMBUDSMAN, respondents,
MARIA CLARA L. LOBREGAT and JOSE R. ELEAZAR, JR., intervenors.

Estelito P. Mendoza and Villareal Law Offices for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for intervenors.

GANCAYCO, J.:
In these petitions the issues raised are: (1) whether or not the Presidential Commission on
Good Government (PCGG) has the power to conduct a preliminary investigation of the anti-graft
and corruption cases filed by the Solicitor General against Eduardo Cojuangco, Jr. and other
respondents for the alleged misuse of coconut levy funds; and (2) on the assumption that it has
jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a
violation of petitioner's rights to due process and equal protection of the law.
On November 28, 1989, President Corazon C. Aquino directed the Solicitor General to
prosecute all persons involved in the misuse of coconut levy funds. Pursuant to the above
directive the Solicitor General created a task force to conduct a thorough study of the possible
involvement of all persons in the anomalous use of coconut levy funds.
On January 12, 1990, the Solicitor General filed two criminal complaints with respondent PCGG
docketed under I.S. Nos. 74 and 75. 1
The PCGG assigned both complaints to prosecutor Cesario del Rosario for preliminary
investigation. The latter scheduled both cases for hearing.
Del Rosario prepared a subpoena dated January 16, 1990 setting the preliminary investigation
on January 29, 1990 at 2:00 o'clock in the afternoon as to respondents Maria Clara Lobregat,
Jose Eleazar, Felix Duenas Jr., and Salvador Escudero, III, and on January 31, 1990 at 2:00
o'clock in the afternoon as to petitioner Eduardo M. Cojuangco, Jr., Rolando de la Cuesta, and
Hermenegildo Zayco.
At the scheduled preliminary investigation on January 31, 1990 petitioner appeared through
counsel. Instead of filing a counter-affidavit, as required in the subpoena, he filed two motions
addressed to the PCGG, namely; (1) a motion to disqualify/inhibit PCGG; alternatively, a motion
to dismiss; and (2) motion to have the PCGG itself hear or resolve Cojuangco's motion to
disqualify/inhibit PCGG alternatively, motion to dismiss.
Prosecutor del Rosario denied both motions and declared the proceedings closed and the
cases submitted for resolution. Thereafter, petitioner requested the PCGG to resolve directly his
aforesaid motions.
On February 27, 1990, the PCGG issued an order denying petitioner's motions and required
him, together with all the respondents in I.S. Nos. 74 and 75 to submit counter-affidavits within
five (5) days from receipt thereof. Petitioner did not submit the required counter-affidavit.

Instead, he filed in this Court on March 12, 1990 the herein petitions for prohibition with prayer
for a temporary restraining order/writ of preliminary injunction.
He alleges that the PCGG may not conduct a preliminary investigation of the complaints filed by
the Solicitor General without violating petitioner's rights to due process and equal protection of
the law, and that the PCGG has no right to conduct such preliminary investigation. It is prayed
that a temporary restraining order be issued enjoining the respondents and any or all persons
acting under their orders or in their behalf from continuing with the preliminary investigation of
I.S. Nos. 74 and 75 and enjoining as well the PCGG from taking any further action on said
cases; and after hearing on the merits, to issue a writ of preliminary injunction prohibiting
respondent PCGG from conducting a preliminary investigation of said criminal complaints and to
order that the records of I.S. Nos. 74 and 75 be forwarded to the Ombudsman for such action
he may consider appropriate and to pay the costs of the suits.
In a resolution dated March 13, 1990, this Court, without giving due course to the petition,
resolved to require respondents to comment thereon within ten (10) days from notice.
On the same date, the PCGG issued an order that reads as follows:
Considering that none of the respondents have filed their counter-affidavits and
supporting evidence, except respondent Hermenegildo Zayco, the complaints
filed against them may now be considered submitted for resolution by this
Commission.
Since the respondents, except Hermenegildo Zayco, have not submitted counteraffidavits and controverting evidence, the evidence submitted by the
complainants stands uncontradicted. And this Commission finds the findings and
conclusions of fact of the investigating prosecutor, that a prima facie case has
been established against all the respondents, including Hermenegildo Zayco, to
warrant the filing of an information for a violation of Section 3(1) in relation to
Section 3(i) thus making them liable under Section 3(a) of RA 3019, to be wellfounded.
Wherefore, let the corresponding information be filed. 2
On March 14, 1990, two informations 3 were filed by the PCGG with the Sandiganbayan against
petitioner and all other respondents named in I.S. Nos. 74 and 75 which were docketed as
Criminal Cases No. 14398 and 14399.
Meanwhile, the Solicitor General filed with the PCGG several other complaints against petitioner
and several others bearing on the misuse of the coconut levy funds. Two of these complaints
were docketed as I.S. Nos. 79 and 82. A panel of prosecutors designated by the PCGG issued
a subpoena to petitioner in order to compel him to appear in the investigation of said cases.

On March 20, 1990, petitioner filed a supplemental petition informing the Court of the filing of
said informations and the additional complaints aforestated. He prays that a temporary
restraining order be issued enjoining respondents and other persons acting under their orders or
in their behalf from continuing with the preliminary investigation of as well as taking further
action in I.S. Nos. 79 and 82 and similar cases filed with the PCGG. Petitioner also prays that,
after hearing, the PCGG be prohibited from continuing with the preliminary investigation of I.S.
Nos. 79 and 82 and that it be ordered to forward the records of the case to the Ombudsman for
appropriate action, and to pay the costs of the suit.
On the same date, petitioner filed a motion reiterating the petition for the issuance of a
temporary restraining order/writ of preliminary injunction and alternatively seeking that the case
be set for hearing.
On March 22, 1990, the Court admitted the supplemental pleading of the petitioner; required
respondents to comment thereon within a non-extendible period of ten (10) days from notice;
and issued a status quo order prevailing at the time this petition was filed on March 12, 1990.
On April 2, 1990, a consolidated comment was submitted by the respondents attaching as
annex thereto the letters of the Executive Secretary dated February 9, 1990 and February 21,
1990, respectively, addressed to the Chairman, PCGG, conveying the instructions of the
President of the Philippines that the complaints involving coconut levy funds be filed with the
PCGG, to conduct the necessary investigation and if warranted to file and prosecute the cases
before the Sandiganbayan; and it confirmed the earlier instructions of the President dated
November 28, 1989 to the same effect. 4
On May 4, 1990 petitioner filed a reply to the consolidated comment as required by the Court. In
a resolution dated June 5, 1990, the Solicitor General was required to file a rejoinder. On May
31, 1990, a motion for hearing of said cases was filed by petitioner and this was granted by the
Court on June 21, 1990. It was directed that the Ombudsman be impleaded as partyrespondent. The Court required the Ombudsman to comment on the petition within ten (10)
days from notice. The case was set for hearing on Tuesday, July 17, 1990 at 10:00 in the
morning.
The Ombudsman submitted his comment on July 3, 1990 and the Court required petitioner to
file a reply to the same.
On July 6, 1990, Maria Clara Lobregat and Jose R. Eleazar, Jr. filed a Motion for Leave to
Intervene and a Motion to Admit Petition to Intervene wherein they ask that the PCGG desist
from further proceeding with the preliminary investigation of I.S. Nos. 74, 75, 77, 79, 80, 81, 82,
83, and 84 charging the intervenors and other respondents, including petitioner, with violations
of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) in connection with the,
coconut levy funds. The intervenors question the authority of the PCGG to conduct a preliminary
investigation of the said cases. They maintain that even assuming that the PCGG has such
authority, the same cannot be delegated to a prosecutor or his assistants.

On July 10, 1990, the court granted the motion for leave to intervene and admitted the petition
for intervention. The PCGG was required to comment on said petition within ten (10) days from
notice.
On July 13, 1990, respondents filed their rejoinder to the reply of petitioner to their consolidated
comments. The Ombudsman filed his comment to the petition for intervention, while petitioner
filed his reply to the comment of the Ombudsman on July 16, 1990.
The hearing was held as scheduled on July 17, 1990 where all the parties including the
Ombudsman appeared and/or were duly represented by counsels. After the hearing, the parties
were required to submit their simultaneous memoranda within fifteen (15) days from the date of
the hearing.
On July 21, 1990, the Solicitor General asked for an extension of time within which to file his
comment to the petition for intervention. He filed said comment within the period of extension
asked for on July 31, 1990.
The memoranda of all the parties having been submitted, the petitions were deemed submitted
for resolution.
On the first issue wherein petitioner and intervenors question the authority of the PCGG to
conduct a preliminary investigation of the criminal complaints filed against them by the Solicitor
General, the Court finds and so holds the same to be devoid of merit.
Under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure the officers authorized to
conduct a preliminary investigation are the following:
Sec. 2. Officers authorized to conduct preliminary investigation.
The following may conduct a preliminary investigation:
(a) Provincial or city fiscals and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Court;
(c) National and Regional state prosecutors; and
(d) Such other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
Under Section 2 likewise of Rule 112 of the Rules of Court before its present amendment, the
officers authorized to conduct preliminary investigation are as follows:

Sec. 2. Officers authorized to conduct preliminary examination: Every justice

of the peace, municipal judge, city or provincial fiscal, shall have authority to
conduct preliminary examination or investigation in accordance with these rules
of all offenses alleged to have been committed within his municipality, city or
province, cognizable by the Court of First Instance.
The justice of the peace of the provincial capital or of the municipality in which
the provincial jail is located when directed by an order of the Court of First
Instance, shall have authority to conduct such preliminary examination or
investigation of any offense committed anywhere within his province at the
expense of the municipality wherein the same was committed.
Under Section 3 thereof in case of temporary absence of the justice of the peace or his auxiliary,
the municipal mayor may conduct the preliminary investigation. For complaints filed directly with
the Court of First Instance, the judge of the said court may refer the case to the justice of the
peace or he may himself conduct both the preliminary examination and investigation
simultaneously, under Section 13 of the same rule.
Upon the enactment of the Anti-Graft and Corrupt Practices Act on August 17, 1960, 5 and
Republic Act No. 1379 (covering unexplained wealth cases) on August 18, 1955, the preliminary
investigation of cases involving the Anti-Graft and Corrupt Practices Act and/or unexplained
wealth cases was vested on the aforestated officers.
However, on July 17, 1979, Presidential Decree No. 1630 was promulgated whereby the
Tanodbayan was vested with the "exclusive authority to conduct preliminary investigation of all
cases cognizable by the Sandiganbayan." 6Under Presidential Decree No. 1486 which was
approved on June 11, 1978, the Sandiganbayan was created and vested with exclusive
jurisdiction over all offenses committed by public officers enumerated therein. This was
amended by Presidential Decree No. 1606 dated December 10, 1978 and further amended by
Presidential Decree No. 1861 issued on March 23, 1983 wherein the jurisdiction of the
Sandiganbayan was defined as follows:
Sec. 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as
follows:
Sec. 4. Jurisdiction The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in
relation to their office, including those employed in government-owned or

controlled corporations, whether simple or complexed with other crimes, where

the penalty prescribed by law is higher than prision correccionalor imprisonment
for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or
felonies mentioned in this paragraph where the penalty prescribed by law does
not exceed prision correccional or imprisonment for six (6) years or a fine of
P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court and Municipal Circuit Trial Court.
(b) Exclusive appellate jurisdiction:
(1) On appeal, from the final judgments, resolutions or orders of the Regional
Trial Courts in cases originally decided by them in their respective territorial
jurisdiction.
(2) By petition for review, from the final judgments, resolutions or orders of the
Regional Trial Courts in the exercise of their appellate jurisdiction over cases
originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, in their respective jurisdiction.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules the Supreme Court has promulgated and may hereinafter
promulgate, relative to appeals/petitions for review to the Intermediate Appellate
Court shall apply to appeals and petition for review filed with the Sandiganbayan.
In all cases elevated to the Sandiganbayan, the Office of the Tanodbayan shall
represent the People of the Philippines.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees.
Any provision of law or the Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil liability
arising from the offense charged shall at all times be simultaneously instituted
with and jointly determined in the same proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action being deemed to necessarily
carry with it the filing of the civil action, and no right to reserve the filing of such
civil action separately from the criminal action shall be recognized: PROVIDED,
HOWEVER, that where the civil action had heretofore been filed separately but
judgment therein has not yet been rendered, and the criminal case is hereafter
filed with the Sandiganbayan or the appropriate court, said civil action shall be
transferred to the Sandiganbayan or the appropriate court, as the case maybe,
for consolidation and joint determination with the criminal action, otherwise the
separate civil action shall be considered abandoned.

Sec. 2. All cases pending in the Sandiganbayan or in the appropriate courts as of

the date of the effectivity of this Decree shall remain with and be disposed of by
the courts where they are pending.
Sec. 3. The provisions of this Decree notwithstanding, the office of the
Tanodbayan shall continue to have the exclusive authority to conduct preliminary
investigation, file the necessary information, and direct and control the
prosecution of all cases enumerated in Section 4 of Presidential Decree
No.1606, whether such cases be within the exclusive original/appellate
jurisdiction of the Sandiganbayan or the appropriate courts in accordance with
the provisions of Presidential Decree No. 1630. (Emphasis supplied.)
However, this exclusive jurisdiction of the Tanodbayan to conduct preliminary investigation of
said cases was modified by Executive Order No. 1 signed by President Corazon C. Aquino on
February 28, 1986 creating the PCGG and constituting its membership to assist the President in
the recovery of ill gotten wealth accumulated by the former President, his relatives and cronies.
Therein it is provided, among others:
Sec. 2. The Commission shall be charged with the task of assisting the
President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the takeover
or sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority, influence,
connections or relationship.
(b) The investigation of such cases of graft and corruption as the President may
assign to the Commission from time to time.
(c) The adoption of safeguards to ensure that the above practices shall not be
repeated in any manner under the new government, and the institution of
adequate measures to prevent the occurrence of corruption.
Sec. 3. The Commission shall have the power and authority:
(a) To conduct investigations as may be necessary in order to accomplish and
carry out the purposes of this order. (Emphasis supplied.)
Under Executive Order No. 14 signed by President Aquino on May 7, 1986, it is also provided:
Sec. 1. Any provision of the law to the contrary notwithstanding, the Presidential
Commission on Good Government with the assistance of the Office of the

Solicitor General and other government agencies, is hereby empowered to file

and prosecute all cases investigated by it under Executive Order No. 1, dated
February 28, 1986 and Executive Order No. 2, dated March 12, 1986, as may be
warranted by its findings.
Sec. 2. The Presidential Commission on Good Government shall file all such
cases, whether civil or criminal, with the Sandiganbayan, which shall have
exclusive and original jurisdiction thereof .
Sec. 3. Civil suits for restitution, reparation of damages, or indemnification for
consequential damages, forfeiture proceedings provided for under Republic Act
No. 1379, or any other civil actions under the Civil Code or other existing laws, in
connection with Executive Order No.1 dated February 28, 1986 and Executive
Order No. 2 dated March 12, 1986, may be filed separately from and proceed
independently of any criminal proceedings and may be proved by preponderance
of evidence. (Emphasis supplied.)
From the foregoing provisions of law, particularly Sections 2(b) and 3(a) of Executive Order No.
1 and Sections 1 and 2 of Executive Order No. 14, it is clear that the PCGG has the power to
investigate and prosecute such ill-gotten wealth cases of the former President, his relatives and
associates, and graft and corrupt practices cases that may be assigned by the President to the
PCGG to be filed with the Sandiganbayan. No doubt, the authority to investigate extended to the
PCGG includes the authority to conduct a preliminary investigation. 7
Thus, the Tanodbayan lost the exclusive authority to conduct the preliminary investigation of
these types of cases by the promulgation of the said Executive Order Nos. 1 and 14 whereby
the PCGG was vested concurrent jurisdiction with the Tanodbayan to conduct such preliminary
investigation and to prosecute said cases before the Sandiganbayan. 8 The power of the PCGG
to conduct a preliminary investigation of the aforementioned types of cases has been
recognized by this Court in Bataan Shipyard and Engineering Co. Inc. (BASECO) vs. PCGG. 9
Upon the adoption of the 1987 Constitution, the Office of the Ombudsman was created under
Article XI, as follows:
Sec. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
(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. (Emphasis supplied)
This Court, in Zaldivar, 10 interpreting the aforesaid provision of the Constitution, particularly
Section 13(1) thereof vesting on the Ombudsman the right and the power to investigate on its
own or on complaint, any act or omission of any public official, employee, office or agency which
appears "to be illegal, unjust, improper, or inefficient", held that the general power of
investigation covers the lesser power to conduct a preliminary investigation. Thus, as the power
of investigation vested on the Ombudsman under the Constitution includes the power to conduct
a preliminary investigation, then the special prosecutor (former Tanodbayan) may no longer
conduct such a preliminary investigation unless duly authorized by the Ombudsman. 11
A reading of the foregoing provision of the Constitution does not show that the power of
investigation including preliminary investigation vested on the Ombudsman is exclusive. Hence,
the said provision of the Constitution did not repeal or remove the power to conduct an
investigation, including the authority to conduct a preliminary investigation, vested on the PCGG
by Executive Orders Nos. 1 and 14.
Although under Section 26 of Article XVIII of the Constitution the authority of the PCGG to issue
sequestration or freeze orders was maintained for not more than eighteen months after the

ratification of the Constitution, it cannot be construed thereby that its power of investigation had
thereby been revoked by the failure to reiterate said power in the Constitution.
Indeed, upon the passage of Republic Act No. 6770, otherwise known as the "Ombudsman Act
of 1989," it is therein specifically provided in Section 15 as follows:
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 xxx xxx
(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the
parties involved therein.
The Ombudsman shall give priority to complaints filed against high ranking
government officials and/or those occupying supervisory positions, complaints
involving grave offenses as well as complaints involving large sums of money
and/or properties.
Under Section 15(l) of Republic Act No. 6770 aforecited, the Ombudsman has primary
jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage
from any investigatory agency of the government, the investigation of such cases. The authority
of the Ombudsman to investigate offenses involving public officers or employees is not
exclusive but is concurrent with other similarly authorized agencies of the government. Such
investigatory agencies referred to include the PCGG and the provincial and city prosecutors and
their assistants, the state prosecutors and the judges of the municipal trial courts and municipal
circuit trial courts. 12
In other words, the aforestated provision of the law has opened up the authority to conduct
preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory
agencies of the government duly authorized to conduct a preliminary investigation under
Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the
Ombudsman may take over at any stage of such investigation in the exercise of his primary
jurisdiction.
It is also noted that under Section 15(11) of the aforestated Republic Act No. 6770, among the
powers vested on the Ombudsman is to investigate and to initiate the proper action for recovery

of ill-gotten wealth and/or unexplained wealth amassed after February 25, 1986 and the
prosecution of the parties involved therein. The Court agrees with the contention of the public
respondent PCGG that this provision is a tacit recognition that the authority of the PCGG to
conduct preliminary investigation of ill-gotten wealth and/or unexplained wealth
amassedbefore February 25, 1986 is maintained.
However, the Court finds and so holds that the aforesaid provision of the law cannot in any
manner dilute or diminish the primary jurisdiction of the Ombudsman over all such types of
cases committed by public officers or employees as provided in Section 13, Article XI of the
Constitution. Thus, notwithstanding the provision of Section 15(11) of Republic Act No. 6770, the
primary jurisdiction of the Ombudsman to investigate covers ill-gotten wealth and/or unexplained
wealth cases that occurred even before February 25, 1986.
The second issue raised that the preliminary investigation by the PCGG of the aforestated
complaints violates the right of petitioner to due process and to equal protection of law is
impressed with merit.
Under Section 1, Rule 112 of the 1985 Rules on Criminal Procedure, 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 purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of a crime, from
the trouble, expense, anxiety of a public trial, and also to protect the state from useless and
expensive trials. 13
The conduct of a preliminary investigation is the initial step towards the criminal prosecution of a
person. After such preliminary investigation, if the investigating officer finds that there is
sufficient ground to engender a well-founded belief that a crime has been committed and that
the respondent is probably guilty thereof and should be held for trial, then the corresponding
complaint or information shall be filed in the competent court. It is the filing of said complaint or
information that initiates the criminal prosecution of the accused when he is brought to court for
trial.
Such a preliminary investigation is required for offenses cognizable by the Regional Trial Court
and the Sandiganbayan. 14 It must be undertaken in accordance with the procedure provided in
Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed
in order to assure that a person undergoing such preliminary investigation will be afforded due
process.
As correctly pointed out by petitioner, an indispensable requisite of due process is that the
person who presides and decides over a proceeding, including a preliminary investigation, must
possess the cold neutrality of an impartial judge. 15

Although such 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, a 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 then been
called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is
opportunity to be heard and for, the production and weighing of evidence, and a decision is
rendered thereon.
The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a
preliminary investigation is no less than that of a municipal judge or even a regional trial court
judge. 16 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 quasi judicialofficer.
Soon after the creation of the PCGG under Executive Order No. 1, the PCGG sequestered and
froze all the properties of petitioner Cojuangco in accordance with the powers vested in it by
law.
On July 31, 1987, said petitioner was sued by the PCGG before the Sandiganbayan by way of a
complaint entitled "Republic of the Philippines vs. Eduardo M. Cojuangco, Jr.," et al. docketed
as Civil Case No. 0033. Among the allegations of the complaint are as follows:
This is a civil action against Defendants Eduardo Cojuangco, Jr., Ferdinand E.
Marcos, Imelda R. Marcos and the rest of the Defendants in the above-entitled
case to recover from them ill-gotten wealth consisting of funds and other property
which they, in unlawful concert with one another, had acquired and accumulated
in flagrant breach of trust and of their fiduciary obligations as public officers with,
grave abuse of right and power and in brazen violation of the Constitution and
laws of the Republic of the Philippines, thus resulting in their unjust enrichment
during Defendant Ferdinand E. Marcos' 20 years of rule from December 30, 1965
to February 25, 1986, first as President of the Philippines under the 1935
Constitution and, thereafter, as one man ruler under martial law and Dictator
under the 1973 Marcos-promulgated Constitution.
2. The wrongs committed by Defendant acting singly or collectively and in
unlawful concert with one another, include the misappropriation and theft of
public funds, plunder of the nation's wealth, extortion, blackmail, bribery,
embezzlement and other acts of corruption, betrayal of public trust and brazen
abuse or power as more fully described below, all at the expense and to the
grave and irreparable damage of Plaintiff and the Filipino people. (Emphasis
supplied.) 17

The complaint was filed by the PCGG through its Chairman, Ramon A. Diaz, who verified the
complaint, and Solicitor General Francisco I. Chavez and Assistant Solicitor General Ramon S.
Desuasido.
Petitioner in turn filed a counterclaim against the PCGG for the sequestration of his properties
and the institution of the suit. He also questioned the acts of the PCGG in several special civil
actions before the court. 18
On November 27, 1989, the first working day after petitioner Cojuangco returned to the
Philippines, the PCGG filed with the Sandiganbayan an information against said petitioner for
violation of Republic Act No. 3019 entitled "People of the Philippines vs. Eduardo M. Cojuangco,
Jr." docketed as Criminal Case No. 14161. However, the Sandiganbayan found no probable
cause for the issuance of a warrant of arrest so a petition for certiorari was filed by the Solicitor
General in this Court docketed as G.R. No. 91741. On March 29, 1990 this Court denied the
petition.
On November 28, 1989, President Aquino directed the Solicitor General to prosecute all
persons involved in the misuse of the coconut levy funds. The Solicitor General created a task
force for the purpose.
On January 12, 1990, the Solicitor General filed with the PCGG the first two criminal complaints
for violation of the Anti-Graft and Corrupt Practices Act, bearing on the anomalous use and/or
misuse of the coconut levy funds docketed as I.S. Nos. 74 and 75. Among the respondents
were the petitioner and intervenors Lobregat and Eleazar. The PCGG assigned assistant
prosecutor Cesario del Rosario to conduct the preliminary investigation.
As hereinabove related, a subpoena was issued by the said prosecutor for the preliminary
investigation on January 29, 1989 insofar as intervenors are concerned while that of petitioner,
de la Cuesta and Herminigildo Zayco was scheduled on January 31, 1990. In the
same subpoena, respondents were required to submit their counter-affidavits and other
supporting documents to controvert the complaint within ten (10) days from notice.
On the scheduled investigation dated January 29, 1990, intervenors appeared through counsel
and moved to dismiss the complaints for lack of jurisdiction of the PCGG to conduct the
preliminary investigation but this was denied by said prosecutor. They were asked by the
prosecutor if they will submit their counter-affidavits but intervenors' counsel replied that they
were not yet ready to file the same because of their pending motion. Thus, the cases were
considered closed insofar as they are concerned.
The intervenors contested the prosecutor's action before the Sandiganbayan through a petition
for certiorari and prohibition docketed as Criminal Case No. 0093. On March 13, 1990, the
Sandiganbayan promulgated its decision wherein it declared the preliminary investigation
conducted by del Rosario null and void, enjoined the PCGG from filing an information on the
basis thereof and directed the PCGG to conduct another preliminary investigation of I.S. Nos.
74 and 75 as to the intervenors and to assign another investigating prosecutor.

Earlier however, that is, on February 27, 1990, the PCGG, overruling prosecutor del Rosario's
order, gave the intervenors in I.S. Nos. 74 and 75 another period of five (5) days from notice
within which to submit their counter-affidavits and supporting evidence. Based on this action the
PCGG filed a motion for reconsideration of the aforesaid decision of the Sandiganbayan which
had not been resolved.
As to petitioner, on the day of the preliminary investigation dated January 31, 1990, his counsel
filed a motion to disqualify or inhibit the PCGG, an alternative motion to dismiss, and a motion to
have the PCGG itself hear and/or resolve the motion to disqualify or inhibit itself alternatively a
motion to dismiss. The preliminary investigation presided by prosecutor del Rosario started at
2:00 o'clock P.M. with eight other respondents duly represented by their counsel. The said
motion was denied and the preliminary investigation was adjourned.
Immediately thereafter petitioner brought the matter to Chairman Mateo A.T. Caparas of the
PCGG and in several communications sought resolution of the motion by the PCGG. On
February 27, 1990, the PCGG issued an order denying petitioner's motion to dismiss for lack of
jurisdiction but did not resolve the motion to disqualify. Therein, the PCGG directed petitioner to
submit his counter-affidavits within five (5) days from receipt of notice.
On March 12, 1990, the same day this petition was filed in this Court, the petitioner, instead of
filing the counter-affidavit, filed with the PCGG an urgent motion to defer proceedings in I.S.
Nos. 74 and 75 for at least until March 22, 1990 within which to seek judicial relief from the
order of February 27, 1990. Upon the filing of this petition, petitioner filed a supplemental urgent
motion to defer proceedings with the PCGG informing it of the filing of this petition.
Nevertheless, on March 14, 1990, the PCGG filed two informations corresponding to the
complaints in I.S. Nos. 74 and 75 which are docketed as Criminal Cases Nos. 14398 and
14399, respectively, at the Sandiganbayan. The PCGG recommended bail as P100,000.00 for
each case.
Meanwhile, the Solicitor General filed two other complaints against the petitioner with the PCGG
accusing the petitioner of violation of Republic Act No. 3019 and other penal laws in connection
with the coconut levy funds, namely, I.S. No. 79 which concerns an alleged arbitration award in
favor of Agricultural Investors Inc., and I.S. No. 82 which concerns the acquisition of coconut oil
mills.
Several other complaints were filed by the Solicitor General with the PCGG against petitioner for
preliminary investigation petition, to wit:
(a) I.S. No. 80 which concerns the acquisition of the First United Bank, now United Coconut
Planters' Bank; (b) I.S. No. 81 concerning shares of the United Coconut Oil Mills Inc.; (c) I.S.
No. 83 regarding the acquisition of coconut oil mills and certain indebtedness thereof; and (d)
I.S. No. 84 regarding settlement of an Anti-Graft suit in the United States. All of these complaints
were for alleged violation of Republic Act No. 3019.

The question that arises, therefore, is whether under the circumstances of this case, it would be
fair and just for the PCGG to conduct the preliminary investigation of the said complaint instead
of the Ombudsman or any other duly authorized investigating agency.
Upon the creation of the PCGG under Executive Order No. 1 issued by President Aquino, the
PCGG was charged with the task of assisting the President not only in the recovery of ill-gotten
wealth or unexplained wealth accumulated by the former President, his immediate family,
relatives, subordinates and close associates but also in the investigation of such cases of graft
and corruption as the President may assign to the Commission from time and to prevent a
repetition of the same in the future.
Section 3 of Executive Order No. 1 provides as follows:
Sec. 3. The Commission shall have the power and authority:
(a) To conduct investigation as may be necesssary in order to accomplish and
carry out the purposes of this order.
(b) To sequester or place or cause to be placed under its control or possession
any building or office wherein any ill-gotten wealth or properties may be found,
and any records pertaining thereto, in order to prevent their destruction,
concealment or disappearance which would frustrate or hamper the investigation
or otherwise prevent the Commission from accomplishing its task.
(c) To provisionally take over in the public interest or to prevent its disposal or
dissipation, business enterprises and properties taken over by the government of
the Marcos administration or by entities or persons close to former President
Marcos, until the transactions leading to such acquisition by the latter can be
disposed of by the appropriate authorities.
(d) To enjoin or restrain any actual or threatened commission of acts by any
person or entity that may render moot and academic, or frustrate, or otherwise
make ineffectual the efforts of the Commission to carry out its tasks under this
order.
(e) To administer oaths, and issue subpoenas requiring the attendance and
testimony of witnesses and/or the production of such books, papers, contracts,
records, statement of accounts and other documents as may be material to the
investigation conducted by the Commission.
(f) To hold any person in direct or indirect contempt and impose the appropriate
penalties, following the same procedures and penalties provided in the Rules of
Court.

(g) To seek and secure the assistance of any office, agency or instrumentality of
the government.
(h) To promulgate such rules and regulations as may be necessary to carry out
the purposes of this order.
From the foregoing provisions of law, it is clear that the PCGG has the following powers and
authority:
1. To conduct an investigation including the preliminary investigation and prosecution of the illgotten wealth cases of former President Marcos, relatives and associates, and graft and
corruption cases assigned by the President to it;
2. Issue sequestration orders in relation to property claimed to be ill-gotten;
3. Issue "freeze orders" prohibiting persons in possession of property alleged to be ill-gotten
from transferring or otherwise disposing of the same;
4. Issue provisional takeover orders of the said property;
5. Administer oaths and issue subpoenas in the conduct of its investigation;
6. Hold any person in direct or indirect contempt and impose the appropriate penalties as
provided by the rules.
Considering that the PCGG, like the courts, is vested with the authority to grant provisional
remedies of (1) sequestration, (2) freezing assets, and (3) provisional takeover, it is
indispensable that, as in the case of attachment and receivership, there exists a prima
facie factual foundation, at least, for the sequestration order, freeze order or takeover order, an
adequate and fair opportunity to contest it and endeavor to cause its negation or nullification.
Both are assured under the foregoing executive orders and the rules and regulations
promulgated by the PCGG. 19
Thus, in Baseco, this Court held, as follows:
Executive Order No. 14 enjoins that there be "due regard to the requirements of
fairness and due process." Executive Order No. 2 declares that with respect to
claims on allegedly "ill-gotten" assets and properties, "it is the position of the new
democratic government that President Marcos . . . (and other parties affected) be
afforded fair opportunity to contest these claims before appropriate Philippine
authorities." Section 7 of the Commission's Rules and Regulations provides that
sequestration or freeze (and takeover) orders issue upon the authority of at least
two commissioners, based on the affirmation or complaint of an interested party,
or motu propio when the Commission has reasonable grounds to believe that the
issuance thereof is warranted. A similar requirement is now found in Section 26,

Art. XVIII of the 1987 Constitution, which requires that "sequestration or freeze
order shall be issued only upon showing of a prima facie case." 20
Insofar as the general power of investigation vested in the PCGG is concerned, it may be
divided into two stages. The first stage of investigation which is called the criminal investigation
stage is the fact-finding inquiring which is usually conducted by the law enforcement agents
whereby they gather evidence and interview witnesses after which they assess the evidence
and if they find sufficient basis, file the complaint for the purpose of preliminary investigation.
The second stage is the preliminary investigation stage of the said complaint. It is at this stage,
as above discussed, where it is ascertained if there is sufficient evidence to bring a person to
trial.
In the petition before this Court, it is not denied that the PCGG conducted the appropriate
criminal investigation of petitioner and intervenors as a law enforcer. In the process it
sequestered all the properties of the petitioner after a prima facie finding that the same amount
to ill-gotten wealth and/or were acquired in relation to allegedly anomalous disposition or misuse
of the coconut levy funds.
The PCGG then filed on July 31, 1987 a complaint docketed as Civil Case No. 0033 against
petitioner and intervenors not only for alleged ill-gotten wealth as associates of former President
Marcos but for the unlawful concert with the former President and his wife to unjustly enrich
themselves at the expense of the Filipino people through the alleged misuse, misappropriation
and dissipation of the coconut levy funds, as enumerated in the complaint. This complaint was
verified and filed by the then Chairman of the PCGG and also signed by the Solicitor General
and the Assistant Solicitor General.
Among the allegations in the civil complaint, are the very transactions now subject of the
criminal complaints filed by the Solicitor General against petitioner to wit:
13. Defendant Eduardo Cojuangco, Jr., taking undue advantage of his
association, influence and connection, acting in unlawful concert with Defendants
Ferdinand E. Marcos and Imelda R. Marcos, embarked upon devices, schemes
and stratagems to unjustly enrich themselves at the expense of Plaintiff and the
Filipino people, such as, when he
13(a) manipulated, beginning the year 1975, with the active collaboration of
Defendants Juan Ponce Enrile, Maria Clara Lobregat Danilo Ursua, Jose R.
Eleazar, Jr. and Herminigildo C. Zayco, the purchase by Philippine Coconut
Authority (PCA) of 72.2% of the outstanding capital stock of the First (sic)
(FUB)which was subsequently converted into a universal bank named United
Coconut Planters Bank (UCPB) through the use of the Coconut Consumers
Stabilization-Fund (CCSF) levy initially in the amount of P85,773,100.00 in a
manner contrary to law and to the specific purposes for which said coconut levy
funds were imposed and collected under P.D. 276, and under anomalous and
sinister designs and circumstances, to wit:

xxx xxx xxx

At pp. 22 to 22-A, Expanded Complaint, Civil Case No.0033)
[I.S. No. 080]
(c) misappropriated, misused and dissipated P840 million of the Coconut Industry
Development Fund (CIDF) levy funds deposited with the National Investment
Development Corporation (NIDC) as administrator-trustee of said funds and later
with UCPB, of which Defendant Eduardo Cojuangco, Jr. was the Chief Executive
Officer in connection with the (i) development, improvement, operation and
maintenance of the Bugsuk Island Seed Garden ("BUGSUK") by Agricultural
Investors, Inc. ("AII") as developer (both Bugsuk and AII are beneficially held and
controlled by Defendant Eduardo Cojuangco, Jr.) pursuant to a highly
oppressive, anomalous and one-sided memorandum agreement, dated
November 20, 1974, (ii) sale by AII to PCA of the seed nuts produced at Bugsuk
Seed Garden at exorbitant prices pursuant to a very onerous, oppressive and
disadvantageous agreement, dated August 2, 1985 and (iii) payment of liquidated
damages in the amount of P640,856,879.67 and arbitration fee of P150,000.00
pursuant to a decision rendered by a Board of Arbitrators against UCPB for
alleged breach of contract.;
xxx xxx xxx
(At pp. 26-27)
[I.S. No. 079]
(d) established and caused to be funded with coconut levy funds, with the active
collaboration of Defendant Ferdinand E. Marcos through the issuance of LOI
926, and of defendants, Juan Ponce Enrile, Jose R. Eleazar, Jr., Maria Clara
Lobregat, Jose C. Concepcion, Inaki Mendezona, Douglas Lu Ym, Teodoro D.
Regala, Emmanuel Almeda, Eduardo Escueta, Leo Palma, and Rolando de la
Cuesta, the United Coconut Oil Mills, Inc. (UNICOM) a corporation beneficially
held and controlled by Defendant Eduardo Cojuangco, Jr. and bought sixteen
(16) competing and/or non-operating oil mills at exorbitant prices in the total
amount of P184,935 million, then mothballed them in order to control the prices
of copra and other coconut products, and assumed and paid the outstanding loan
obligations of seven (7) of those purchased oil mills in the total amount of
P805,984 million with the express consent and approval of Defendant Ferdinand
E. Marcos, thereby establishing a coconut monopoly for their own benefit and
unjust enrichment and to the grave damage of Plaintiff and the Filipino people;
(e) manipulated with the active collaboration of Defendants Mohammad Ali
Dimaporo and Teodoro D. Regala, the sale of the Mindanao Coconut Oil Mills

(MINCOCO) to UNICOM through the issuance of LOI 926 by Defendant

Ferdinand E. Marcos, in violation of the Guaranty Agreement dated July 23,
1976, which prohibited the sale, among others, of the MINCOCO
assets/properties without the prior written consent of NIDC, under terms and
conditions grossly disadvantageous to Plaintiff and the Filipino people;
(f) drew up a scheme of payment to settle the accounts of MINCOCO and other
UNICOM-acquired mills with their respective creditors: namely the National
Investment Development Corporation (NIDC), Deveploment Bank of the
Philippines (DBP), Philippine Veterans Bank (PVB), under terms grossly
disadvantageous to Plaintiff;
xxx xxx xxx
(At pp. 27-28)
[I.S. Nos. 81, 82 and 83]
(g) misappropriated and dissipated the coconut levy funds by withdrawing
therefrom tens of millions of pesos in order to pay damages adjudged against
UNICOM, headed and controlled by Defendant Eduardo Cojuangco, Jr., in an
anti-trust suit in California, U.S.A.;
xxx xxx xxx
(At p. 29)
[I.S. No. 84]
(h) misused, dissipated and unlawfully disbursed coconut levy funds with the
active collaboration and participation of defendants Maria Clara Lobregat, Juan
Ponce Enrile, Jose Eleazar, Jr., Rolando de la Cuesta and Herminigildo Zayco as
members of the PCA governing board for projects and purposes completely alien
to those for which the fund was collected and donations made by PCA such as . .
. P6 million to COCOFED; and other similar unlawful disbursements, which all
remain unaccounted for to date;
xxx xxx xxx
(At pp 28 to 28-A Emphasis supplied)
[I.S. No. 74 and 75]
Thereafter, as aforestated, the Solicitor General filed the first two complaints against petitioner
and intervenors among others, under I.S. Nos. 74 and 75 for alleged violation of the Anti Graft

and Corrupt Practices Act for donations allegedly made out of coconut levy funds to the
Philippine Coconut Producers Federation (COCOFED).
Petitioner and intervenors questioned not only the authority of the PCGG to conduct the
preliminary investigation but asserted a denial of due process and equal protection of the law.
There is cogent basis for their plea.
The PCGG, as a law enforcer, gathered evidence as to the alleged ill-gotten wealth of petitioner
and intervenors and, after satisfying itself that there is a prima facie case, sequestered and
issued a freeze order for all the properties of petitioner. Based also on the said finding of
a prima facie case, the PCGG filed a civil complaint docketed as Civil Case No. 0033 against
petitioner and intervenors for alleged ill-gotten wealth including the alleged misuse,
misappropriation, and diversion of coconut levy funds.
As hereinabove discussed the criminal complaints under I.S. Nos. 74, 79, 80, 81, 82, 83 and 84
filed by the Solicitor General all for alleged violation of Republic Act No. 3019, are covered and
alleged in the aforesaid civil complaint docketed as Civil Case No. 0033.
The PCGG conducted the preliminary investigation of I.S. Nos. 74 and 75 and is poised to
conduct the preliminary investigation of the other aforementioned complaints for the same
alleged violations of law subject of the civil complaint.
The Court cannot close its eyes to the glaring fact that in earlier instances, the PCGG had
already found a prima facie case against the petitioner and intervenors when, acting like a
judge, it caused the sequestration of the properties and the issuance of the freeze order of the
properties of petitioner. Thereafter, acting as a law enforcer, in collaboration with the Solicitor
General, the PCGG gathered the evidence and upon finding cogent basis therefor filed the
aforestated civil complaint. Consequently the Solicitor General filed a series of criminal
complaints.
It is difficult to imagine how in the conduct of such preliminary investigation the PCGG could
even make a turn about and take a position contradictory to its earlier findings of a prima
facie case against petitioner and intervenors. This was demonstrated in the undue haste with
which I.S. Nos. 74 and 75 was investigated and the informations were filed in court even as the
petitioner and intervenors questioned its authority, invoked the denial of due process and
promptly informed the PCGG of the filing of this petition.
In our criminal justice system, the law enforcer who conducted the criminal investigation,
gathered the evidence and thereafter filed the complaint for the purpose of preliminary
investigation cannot be allowed to conduct the preliminary investigation of his own complaint. It
is to say the least arbitrary and unjust.
It is in such instances that We say one cannot be "a prosecutor and judge at the same time."
Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected

to handle with impartiality the preliminary investigation of his own complaint, this time as a
public prosecutor.
The circumstances of the instant petition are even worse. To repeat, the PCGG and the Solicitor
General finding aprima facie basis filed a civil complaint against petitioner and intervenors
alleging substantially the same illegal or criminal acts subject of the subsequent criminal
complaints the Solicitor General filed with the PCGG for preliminary investigation. While
ostensibly, it is only the Solicitor General who is the complainant in the criminal cases filed with
the PCGG, in reality the PCGG is an unidentified co-complainant.
Moreover, when the PCGG issued the sequestration and freeze orders against petitioner's
properties, it was on the basis of a prima facie finding that the same were ill-gotten and/or were
acquired in relation to the illegal disposition of coconut levy funds. Thus, the Court finds that the
PCGG cannot possibly conduct the preliminary investigation of said criminal complaints with the
"cold neutrality of an impartial judge," as it has prejudged the matter. Add to this the fact that
there are many suits filed by petitioner and the intervenors against the PCGG and vice versa.
For lesser grounds this Court had disqualified a fiscal or a judge from handling a case.
A fiscal was disqualified from conducting a preliminary investigation because he had appeared
for the prosecution when said case was pending in the municipal court. 21 In a case filed before
the Commission on Elections this Court held Commissioner Opinion should not have
participated in the case since he was the former lawyer of Arturo Pacificador.22 A judge was
required to inhibit himself in a case where he was a witness for the complainant. 23 A judge
before whom the extrajudicial statement of one of the accused was subscribed was disqualified
from hearing the case. 24 A judge who told the complainant is case was weak and it would be to
his advantage to settle the case was disqualified. 25 A judge against whom an administrative
complaint was filed by one of the parties was also disqualified. 26 In a case where the motion for
inhibition was found to be groundless, this Court held that the judge should inhibit himself
considering the seriousness of the charges. 27 A judge was asked to inhibit himself from trying a
malversation case against the accused since he previously convicted the latter of arson. 28 In
another case, the judge was ordered to inhibit himself because of strained relationship with the
defendant. 29
There are numerous other cases wherein the judges and fiscals were disqualified on similar
grounds as those aforementioned. 30
Where the circumstances do not inspire confidence in the objectivity and impartiality of the
judge, such judge should inhibit voluntarily or if he refuses, he should be prohibited from
handling the case. Judge must not only be impartial but must also appear impartial as an
assurance to the parties that his decision will be just. 31 His actuation must inspire that belief.
This is an instance when appearance is as important as reality. 32
The same rule of thumb should apply to an investigating officer conducting a preliminary
investigation. This is the reason why under Section 1679 of the former Revised Administrative

Code, the Secretary of Justice, who has supervision over the prosecution arm of the
government, is given ample power to designate another prosecutor to handle the investigation
and prosecution of a case when the prosecutor handling the same is otherwise disqualified by
personal interest, or is unable or fails to perform his duty.
The Court finds that under the circumstances of the case, the PCGG cannot inspire belief that it
could be impartial in the conduct of the preliminary investigation of the aforesaid complaints
against petitioner and intervenors. It cannot possibly preside in the said preliminary investigation
with an even hand.
The Court holds that a just and fair administration of justice can be promoted if the PCGG would
be prohibited from conducting the preliminary investigation of the complaints subject of this
petition and the petition for intervention and that the records of the same should be forwarded to
the Ombudsman, who as an independent constitutional officer has primary jurisdiction over
cases of this nature, to conduct such preliminary investigation and take appropriate action.
All violators of the law must be brought before the bar of justice. However, they must be
afforded due process and equal protection of the law, whoever they may be.
WHEREFORE, the petitions of Eduardo M. Cojuangco, Jr. and intervenors Maria Clara
Lobregat, and Jose Eleazar, Jr. are hereby GRANTED. The PCGG is directed to transmit the
complaints and records thereof under I.S. Nos. 74, 75, 79, 80, 81, 82, 83 and 84 to the
Ombudsman for appropriate action. All proceedings of the preliminary investigation conducted
by the PCGG of said complaints are hereby declared null and void including the informations
which it filed in the Sandiganbayan against petitioner and intervenors docketed as Criminal
Cases Nos. 14398 and 14399. The status quo order which this Court issued on March 12, 1990
is hereby made permanent and the PCGG is permanently prohibited from further conducting the
preliminary investigation of the aforestated complaints. The Court makes no pronouncement as
to costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Feliciano, Padilla, Bidin, Sarmiento, Cortes,
Grio-Aquino, Medialdea and Regalado, JJ., concur.
Paras, J., took no part.

Separate Opinions

GUTIERREZ, JR., J.: concurring:

I concur in the Court's decision penned by my distinguished colleague, Mr. Justice Emilio A.
Gancayco. The PCGG cannot preside over these cases with an even hand, much less inspire
the slightest belief in its impartiality and fairness.
Where the PCGG has sequestered properties, arrived at precise conclusions, and filed a CIVIL
case for the recovery or forfeiture of those properties, it is disqualified from conducting any
preliminary investigation of CRIMINAL charges pertaining to the same alleged ill gotten wealth.
As an interested party in the CIVIL case, it is incapable of acting fairly in the CRIMINAL case.
This is the Court's ruling.
I feel, however, that the Court should have gone further.
In the light of the unquestioned jurisdiction given to the Ombudsman by the Constitution and
statute, the PCGG should no longer continue conducting preliminary investigations. It should
limit itself to the preparation and filing of civil cases. Its conduct of preliminary investigations is
so colored by the basic reason for its creation, its institutional structure, and its obsession to
recover everything that it perceives and suspects to be ill gotten wealth that it cannot help but
run roughshod over fundamental requirements of fair play in criminal cases.
Nowhere is pre-judgment so evident as in this case.
In filing the civil case against Mr. Cojuangco, the PCGG has concluded with certainty that he is
guilty of "misappropriation and theft of public funds, plunder of the nation's wealth, extortion,
blackmail, bribery, embezzlement, and other acts of corruption, betrayal of public trust and
brazen abuse of power, as more fully described below, all at the expense and to the grave
irreparable damage of Plaintiff and the Filipino people." (Seecomplaint in CC 0033,
Sandiganbayan, pp. 2 and 3) Mr. Cojuangco has been asked to pay more than P100 Billion in
damages. He was placed on the "hold order" lists of PCGG and prohibited from coming home to
defend himself His wife, children, and grandchildren hold cancelled passports and are
indefinitely exiled.
On January 31, 1990 when the preliminary investigation was to be conducted, a voluminous
motion to inhibit the PCGG was filed by the petitioner. It took the PCGG Prosecutor exactly ten
(10) minutes to deny the motion and pass upon the complex constitutional and jurisdictional
issues. The Supreme Court needed several months to deliberate and resolve the same issues.
Apart from its having been created for the sole purpose of recovering the ill gotten wealth of exPresident Marcos, his relatives and cronies, the make-up of the PCGG prevents it from being
independent. The Chairman and members serve at the absolute pleasure of the President. The
law prescribes no qualifications for their appointment. The law does not mention future
appointments.

The record is replete with incidents of non-objectivity. The petitioner has repeatedly filed motions
to inspect the records of his former companies to enable him to defend himself. Motions which
an ordinary Fiscal, Prosecutor, or Judge would routinely grant are denied. The Supreme Court
itself in, G.R. No. 91741 has ruled that the petitioner had been singled out by the PCGG and
given biased treatment. In that same case, the Sandiganbayan found no probable cause for the
arrest of Mr. Cojuangco. We sustained the Sandiganbayan.
The other issue which the Court should have explored further is the constitutional right of all
accused persons to equal protection of the law.
As earlier stated, the appointment, tenure, functions, and objectives of the PCGG prevent it from
being fair and objective. Its actions in this case show that indeed it cannot be fair and objective.
It is a temporary office given a fixed mission. It has to accomplish that mission.
On the other hand, the Ombudsman is created by the Constitution. It is vested with
"independent" powers. It enjoys fiscal autonomy. It is insulated from interference by the political
departments. The qualifications for Ombudsman are found in the Constitution. They include
"recognized probity and independence." He must have been a practising lawyer or Judge for at
least ten (10) years. The incumbent Ombudsman has served in the Supreme Court, Court of
Appeals, Court of First Instance, Department of Justice and high level fact finding committees.
He was at the top of his class at the U.P. College of Law and has been a distinguished
Professor of Law for decades. He was nominated and appointed Ombudsman on the record of
his unquestioned competence, intellectual skills, integrity, and independence.
In the light of the above considerations, persons who appear before the PCGG and not the
Ombudsman are clearly denied the equal protection guaranteed by the Constitution. There is no
substantial basis for some respondents to appear before the biased and less competent PCGG
while others appear before the impartial and more competent Ombudsman. The line drawn
between public officials in office before February 25, 1986 and those in public office after
February 25, 1986 is arbitrary and discriminatory. There are no substantial distinctions
permitting a valid classification. And as stressed by the petitioner, is there a substantial
distinction between those who committed graft and corruption under former President Marcos
and those who are now committing (according to media and the Roman Catholic hierarchy) graft
and corruption under President Aquino? The petitioner argues:
The violation of equal protection thus becomes clear. It is now four years after
EDSA. Three years after the ratification of the new Constitution. Must there be
one kind of justice for the "victors", another for the "vanquished"? Is there not but
one Filipino under the Constitution? There is no cogent reason why the liberty of
those who were associated with former President Marcos should lie in the hands
of PCGG and not in the Ombudsman who is independent of the President, and,
of course, the Solicitor General, and is precisely mandated by the Constitution to
deal with graft and corruption cases.

It is thus a denial of equal protection of the law that the petitioner has been
subjected to preliminary investigation for violation of R.A. No. 3019 by PCGG
rather than by the Ombudsman. (Petitioner's Memorandum, p. 41)
Impartiality and fundamental fairness are inherent rights of all persons brought before our
criminal justice system. The social justice provisions of the Constitution mandate that the State
must take special measures to protect these rights when the accused are the outcasts and the
poor or belong to a group which is ignored, disliked, or hated by those currently in power.
During the Marcos administration, a top leader of the then opposition was ordered prosecuted in
what were clearly railroaded proceedings. The Court struck down the charade of a preliminary
investigation and among, other things, stated:
The purpose of preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and
public accusation of crime, from the trouble, expense and anxiety of a public trial,
and also to protect the state from useless and expensive trials. (Trocio v. Manta,
118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to transgress
constitutional due process. (See People v. Oandasan 25 SCRA 277) However, in
order to satisfy the due process clause 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 guarantees of freedom
and fair play which are 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 (See La Chemise
Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore,
should not go on with the prosecution in the hope that some credible evidence
might later turn up during trial for this would be a flagrant violation of a basic right
which the courts are created to uphold. It bears repeating that the judiciary lives
up to its mission by vitalizing and not denigrating constitutional rights. So it has
been before. It should continue to be so. (Salonga v. Cruz Panio, 134 SCRA 438,
461-462)
The Court today can do no less. It has to apply the same yardstick to the PCGG. The same
guarantees of fairness and justice in this decision of the Court rendered during the time of Mr.

Marcos belong in equal measure to petitioner Cojuangco and all who appear before the PCGG
during the term of President Aquino.

Separate Opinions
GUTIERREZ, JR., J.: concurring:
I concur in the Court's decision penned by my distinguished colleague, Mr. Justice Emilio A.
Gancayco. The PCGG cannot preside over these cases with an even hand, much less inspire
the slightest belief in its impartiality and fairness.
Where the PCGG has sequestered properties, arrived at precise conclusions, and filed a CIVIL
case for the recovery or forfeiture of those properties, it is disqualified from conducting any
preliminary investigation of CRIMINAL charges pertaining to the same alleged ill gotten wealth.
As an interested party in the CIVIL case, it is incapable of acting fairly in the CRIMINAL case.
This is the Court's ruling.
I feel, however, that the Court should have gone further.
In the light of the unquestioned jurisdiction given to the Ombudsman by the Constitution and
statute, the PCGG should no longer continue conducting preliminary investigations. It should
limit itself to the preparation and filing of civil cases. Its conduct of preliminary investigations is
so colored by the basic reason for its creation, its institutional structure, and its obsession to
recover everything that it perceives and suspects to be ill gotten wealth that it cannot help but
run roughshod over fundamental requirements of fair play in criminal cases.
Nowhere is pre-judgment so evident as in this case.
In filing the civil case against Mr. Cojuangco, the PCGG has concluded with certainty that he is
guilty of "misappropriation and theft of public funds, plunder of the nation's wealth, extortion,
blackmail, bribery, embezzlement, and other acts of corruption, betrayal of public trust and
brazen abuse of power, as more fully described below, all at the expense and to the grave
irreparable damage of Plaintiff and the Filipino people." (See complaint in CC 0033,
Sandiganbayan, pp. 2 and 3) Mr. Cojuangco has been asked to pay more than P100 Billion in
damages. He was placed on the "hold order" lists of PCGG and prohibited from coming home to
defend himself His wife, children, and grandchildren hold cancelled passports and are
indefinitely exiled.
On January 31, 1990 when the preliminary investigation was to be conducted, a voluminous
motion to inhibit the PCGG was filed by the petitioner. It took the PCGG Prosecutor exactly ten
(10) minutes to deny the motion and pass upon the complex constitutional and jurisdictional
issues. The Supreme Court needed several months to deliberate and resolve the same issues.

Apart from its having been created for the sole purpose of recovering the ill gotten wealth of exPresident Marcos, his relatives and cronies, the make-up of the PCGG prevents it from being
independent. The Chairman and members serve at the absolute pleasure of the President. The
law prescribes no qualifications for their appointment. The law does not mention future
appointments.
The record is replete with incidents of non-objectivity. The petitioner has repeatedly filed motions
to inspect the records of his former companies to enable him to defend himself. Motions which
an ordinary Fiscal, Prosecutor, or Judge would routinely grant are denied. The Supreme Court
itself in, G.R. No. 91741 has ruled that the petitioner had been singled out by the PCGG and
given biased treatment. In that same case, the Sandiganbayan found no probable cause for the
arrest of Mr. Cojuangco. We sustained the Sandiganbayan.
The other issue which the Court should have explored further is the constitutional right of all
accused persons to equal protection of the law.
As earlier stated, the appointment, tenure, functions, and objectives of the PCGG prevent it from
being fair and objective. Its actions in this case show that indeed it cannot be fair and objective.
It is a temporary office given a fixed mission. It has to accomplish that mission.
On the other hand, the Ombudsman is created by the Constitution. It is vested with
"independent" powers. It enjoys fiscal autonomy. It is insulated from interference by the political
departments. The qualifications for Ombudsman are found in the Constitution. They include
"recognized probity and independence." He must have been a practising lawyer or Judge for at
least ten (10) years. The incumbent Ombudsman has served in the Supreme Court, Court of
Appeals, Court of First Instance, Department of Justice and high level fact finding committees.
He was at the top of his class at the U.P. College of Law and has been a distinguished
Professor of Law for decades. He was nominated and appointed Ombudsman on the record of
his unquestioned competence, intellectual skills, integrity, and independence.
In the light of the above considerations, persons who appear before the PCGG and not the
Ombudsman are clearly denied the equal protection guaranteed by the Constitution. There is no
substantial basis for some respondents to appear before the biased and less competent PCGG
while others appear before the impartial and more competent Ombudsman. The line drawn
between public officials in office before February 25, 1986 and those in public office after
February 25, 1986 is arbitrary and discriminatory. There are no substantial distinctions
permitting a valid classification. And as stressed by the petitioner, is there a substantial
distinction between those who committed graft and corruption under former President Marcos
and those who are now committing (according to media and the Roman Catholic hierarchy) graft
and corruption under President Aquino? The petitioner argues:
The violation of equal protection thus becomes clear. It is now four years after
EDSA. Three years after the ratification of the new Constitution. Must there be
one kind of justice for the 'victors', another for the 'vanquished'?'Is there not but
one Filipino under the Constitution? There is no cogent reason why the liberty of

those who were associated with former President Marcos should lie in the hands
of PCGG and not in the Ombudsman who is independent of the President, and,
of course, the Solicitor General, and is precisely mandated by the Constitution to
deal with graft and corruption cases.
It is thus a denial of equal protection of the law that the petitioner has been
subjected to preliminary investigation for violation of R.A. No. 3019 by PCGG
rather than by the Ombudsman. (Petitioner's Memorandum, p. 41)
Impartiality and fundamental fairness are inherent rights of all persons brought before our
criminal justice system. The social justice provisions of the Constitution mandate that the State
must take special measures to protect these rights when the accused are the outcasts and the
poor or belong to a group which is ignored, disliked, or hated by those currently in power.
During the Marcos administration, a top leader of the then opposition was ordered prosecuted in
what were clearly railroaded proceedings. The Court struck down the charade of a preliminary
investigation and among, other things, stated:
The purpose of preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and
public accusation of crime, from the trouble, expense and anxiety of a public trial,
and also to protect the state from useless and expensive trials. (Trocio v. Manta,
118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to transgress
constitutional due process. (See People v. Oandasan 25 SCRA 277) However, in
order to satisfy the due process clause 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 guarantees of freedom
and fair play which are 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 (See La Chemise
Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore,
should not go on with the prosecution in the hope that some credible evidence
might later turn up during trial for this would be a flagrant violation of a basic right
which the courts are created to uphold. It bears repeating that the judiciary lives
up to its mission by vitalizing and not denigrating constitutional rights. So it has

been before. It should continue to be so. (Salonga v. Cruz Panio, 134 SCRA 438,
461-462)
The Court today can do no less. It has to apply the same yardstick to the PCGG. The same
guarantees of fairness and justice in this decision of the Court rendered during the time of Mr.
Marcos belong in equal measure to petitioner Cojuangco and all who appear before the PCGG
during the term of President Aquino.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88442 February 15, 1990
FELIX A. VELASQUEZ, petitioner,
vs.
HON. UNDERSECRETARY OF JUSTICE, HON. ARTEMIO G. TUQUERO and EDGARDO
AVILA, respondents.
Joanes G. Caacbay for petitioner.
Tomas R. Leonidas for respondents.

GRIO-AQUINO, J.:
Petition for certiorari to annul and/or set aside the resolution/ letter dated January 4, 1989 of the
public respondent, Undersecretary of Justice Artemio G. Tuquero ordering a reinvestigation of
I.S. No. 86-28751.
Respondent Edgardo Avila was a Cash and Business Development Consultant of the Techtrade
Management International Corporation, authorized to follow-up business transactions, including
loan applications submitted to the company.
On September 29, 1986, Avila informed the company that he had a borrower (whom he did not
identify) for P200,000 with interest of 3%/month for a 30-day term from September 29 to
October 29, 1988. This was approved by the company which issued to him a pay-to-cash check
for P194,000 after deducting the 3% interest of 6,000. Instead of returning the borrowed amount
on due date or giving a satisfactory explanation for the supposed borrower's failure to pay the
loan despite written demands, Avila resigned from the company on December 17, 1986
promising that: "... I shall set aside the P200,000 upon its subsequent collection (subject of Atty.
Caacbay's letter of 12/10/86) to answer for the P100,000 portion of Tony's P700,000 loan to

you; please treat the P100,000 balance, less my unpaid professional fee and gas expenses
from November 16 to December 15, 1986, as my separation and compulsory benefit" (p. 6,
Rollo).
On December 23, 1986, petitioner Felix A. Velasquez, as Executive Vice-President/Managing
Director of Techtrade, filed a complaint for estafa against Avila in the Manila City Fiscal's Office,
where it was docketed as I.S. No. 86-28751. Assistant Fiscal Romulo Lopez dismissed the
complaint. However, upon review by the Chief, Investigation Division of the City Fiscal's Office,
the latter set aside Fiscal Lopez' resolution and ordered the filing of an information for estafa
against Avila in the Regional Trial Court.
Avila twice sought a reconsideration of that resolution, but both motions were denied by the City
Fiscal (Annexes F & H).
Before arraignment, Avila filed on June 29, 1987 in the Department of Justice a petition for
review (Annex I) which the petitioner opposed (Annex J). On February 15, 1988, Justice
Undersecretary Silvestre Bello III denied the petition for review (Annex L). A motion for
reconsideration (Annex M) of the denial did not prosper (Annex O).
On October 14, 1988, Avila filed a second motion for reconsideration which the Undersecretary
of Justice, Honorable Artemio Tuquero granted on January 4, 1989 (Annex A, Petition). He
directed the City Fiscal:
... to conduct a reinvestigation of this case to afford respondent to properly
present evidence that he was duly authorized to pay the subject creditors and for
complainant to rebut the same with controverting evidence, and thereafter to
resolve the case anew on the basis of all the evidence adduced. (p. 15, Rollo.)
The complainant filed a motion for reconsideration (Annex C) of that resolution but it was denied
on May 15, 1989 (Annex B, Petition). Hence, this petition for certiorari.
The petition is meritorious. This case is governed by our decision in Crespo vs. Mogul, 151
SCRA 462, where we ruled that once the information is filed in court, the court acquires
complete jurisdiction over it. A motion for reinvestigation should, after the court had acquired
jurisdiction over the case, be addressed to the trial judge and to him alone. Neither the
Secretary of Justice, the State Prosecutor, nor the Fiscal may interfere with the judge's
disposition of the case, much less impose upon the court their opinion regarding the guilt or
innocence of the accused, for the court is the sole judge of that.
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[e] 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. (Crespo vs. Mogul, 151 SCRA 462,
471 & 472.)
Crespo vs. Mogul was reiterated in Marquez vs. Alejo, 154 SCRA 302; Sta. Rosa Mining Co. vs.
Asst. Provincial Fiscal Augusta Zabala, 153 SCRA 367; Republic vs. Judge Sunga, G.R. No.
38634, June 20, 1988; Peralta vs. CFI of La Union, 157 SCRA 476 and Almazar vs. Judge
Cenzon, 161 SCRA 454.
The Undersecretary of Justice gravely abused his discretion in ordering the re-investigation of
the criminal case against Avila after it had been filed in court. The avowed purpose of the
reinvestigation "to give an opportunity to the private respondent to present an authentic copy of
the board resolution of the offended party (Techtrade Management International Corporation)
which [allegedly] had authorized him to deal and otherwise dispose of the funds of the
corporation" (p. 72, Rollo), can also be achieved at the trial in the lower court where that piece
of evidence may be presented by the accused as part of his defense.
WHEREFORE, the petition for certiorari is granted. The order dated January 4, 1989 of the
public respondent (Annex A, Petition) is hereby annulled and set aside, with costs against the
petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-53373 June 30, 1987

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 nine 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 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:
ORDER

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.
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 fonow 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. 20Prosecuting 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. 24Neither 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 rase 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. 36or 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.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 130644 March 13, 1998

THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by his mother,
MARGARITA G. LARRANAGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION

PUNO, J.:
The following are submitted before the Court for resolution:
1. an urgent motion to implement petitioner's release filed by petitioner on
November 3, 1997;

2. a motion for reconsideration of this Court's resolution of October 27,

1997 filed on November 17, 1997 by the counsels for the prosecution in
Crim. Case No. CBU-45303 and 45304;
3. a complaint filed by Judge Martin A. Ocampo, Presiding Judge,
Regional Trial Court, Branch 7, Cebu City, against petitioner's counsels,
Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito
Florido, for allegedly deliberately withholding from this Court the omnibus
order, supplemental order and order of arraignment he issued on October
17, 1997, thus misleading the Court into issuing its resolution of October
27, 1997; and
4. an urgent motion to change the venue and the officers to conduct the
preliminary investigation filed by petitioner on November 17, 1997.
The antecedent facts:
Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious
illegal detention docketed as CBU-45303 and CBU-45304 pending before the Regional Trial
Court (RTC), Branch 7, Cebu City. He is presently detained at the Bagong Buhay Rehabilitation
Center.
On October 1, 1997, petitioner, represented by his mother, Margarita G. Larranaga, filed with
this Court a petition for certiorari, prohibition and mandamus with writs of preliminary prohibitory
and mandatory injunction. Petitioner alleged that he was denied the right to preliminary
investigation and sought to annul the informations as well as the warrant of arrest issued in
consequence thereof. In the alternative, petitioner prayed that a preliminary investigation be
conducted and that he be released from detention pending the investigation.1 Petitioner filed a
supplemental petition for habeas corpus or bail on October 6, 1997.2
On October 20, 1997, the Solicitor General filed a manifestation and motion in lieu of comment
submitting that petitioner should have been given a regular preliminary investigation before the
filing of the informations and the issuance of the warrant of arrest. The Solicitor General
recommended that petitioner be accorded his right to preliminary investigation and that he be
released from detention during the pendency thereof;3
On October 27, 1997, we issued a resolution holding that petitioner was deprived of his right to
preliminary investigation when the City Prosecutor of Cebu insisted that he was only entitled to
an inquest investigation.4Hence, we resolved:
1. to set aside the inquest investigation of petitioner and to order the
Office of the City Prosecutor of Cebu to conduct a regular preliminary
investigation of the petitioner in accord with Section 3, Rule 112;
2. to annul the Order for Detention During The Pendency of the Case
issued by Executive Judge Priscila Agana against the petitioner in Crim.
Case No. CBU-45303 and 45304;
3. to order the immediate release of petitioner pending his preliminary
investigation; and

4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and
desist from proceeding with the arraignment and trial of petitioner in Crim.
Case No. CBU-45303 and 45304, pending the result of petitioner's
preliminary investigation.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte motion praying
for his immediate release pursuant to our October 27 resolution.5
The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding Judge of RTC
Branch 7, Cebu City, issued an order deferring the resolution of petitioner's motion. It stated that
it would be premature to act on the motion since the trial court has not yet received an official
copy of our October 27 resolution and that said resolution has not yet attained finality.
Furthermore, Judge Ocampo called the Court's attention to the fact that petitioner has been
arraigned on October 14, 1997 and waived his right to preliminary
investigation. 6
On November 3, 1997, petitioner filed with this Court an urgent motion praying, among others,
that Judge Ocampo be directed to order petitioner's immediate release upon receipt of our
October 27 resolution.7
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997 alleging that
petitioner's counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito
Florido, deliberately withheld from this Court the omnibus order, supplemental order and order
of arraignment, all issued by him on October 14, 1997 in connection with Crim. Case No. CBU45303 and 45304. Judge Ocampo alleged that by withholding said orders, petitioner's counsels
unwittingly misled the Court in its October 27 resolution.8
On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU-45303 and
45304 filed a motion for reconsideration of our October 27 resolution. 9 They raised the following
arguments:
1. Petitioner is charged with a continuing offense; hence, his arrest and
detention about two months after the abduction of the victims was lawful;
2. Since petitioner was arrested without a warrant, his case comes within
the purview of Section 7 of Rule 112, not under Section 3 thereof;
3. The filing of the informations in court and the issuance of the
corresponding warrants of arrest by Executive Judge Priscila S. Agana
cured whatever defect there was in petitioner's arrest and detention;
4. Petitioner was validly arraigned on October 14, 1997 and the validity of
such arraignment was not set aside by this tribunal;
5. The case of Sanchez v. Demetriou squarely applies to the instant case;
and
6. Petitioner is no longer a minor pursuant to R.A. 6809.

The Solicitor General, meanwhile, in its comment to petitioner's urgent motion for release,
modified its stance regarding the validity of petitioner's detention.10 It stated:
Considering that petitioner was arraigned (a supervening event after the filing of the
petition and before the issuance of the TRO), petitioner should be kept in detention
without prejudice to his right to preliminary investigation.11
Petitioner also filed on November 17, 1997 an urgent motion to transfer the venue of the
preliminary investigation from Cebu City to Manila and to replace the Office of the City
Prosecutor of Cebu with the Office of the State Prosecutor, Department of Justice, as the
authority to conduct the preliminary investigation because of the extensive coverage of the
proceedings by the Cebu media which allegedly influenced the people's perception of
petitioner's character and guilt.12
The primary issues to be resolved are: (1) whether petitioner is entitled to a regular preliminary
investigation, and (2) whether petitioner should be released from detention pending the
investigation.
We resolve the first issue in the affirmative.
The prosecutors argue that petitioner is entitled only to an inquest investigation under Section 7
of Rule 112 since he was lawfully arrested without a warrant under Section 5, Rule 113 of the
Revised Rules of Court.
The prosecutors' argument is bereft of merit. Section 7 of Rule 11213 applies only to
persons lawfully arrestedwithout a warrant. Petitioner in this case was, in the first place, not
arrested either by a peace officer or a private person. The facts show that on September 15,
1997, some members of the Philippine National Police Criminal Investigation Group (PNP CIG)
went to the Center for Culinary Arts in Quezon City to arrest petitioner, albeitwithout warrant.
Petitioner resisted the arrest and immediately phoned his sister and brother-in-law. Petitioner's
sister sought the aid of Atty. Raymundo A. Armovit. Atty. Armovit, over the phone, dissuaded the
police officers from carrying out the warrantless arrest and proposed to meet with them at the
CIG headquarters in Camp Crame, Quezon City. The police officers, yielded and returned to the
CIG headquarters. Petitioner, together with his sister and brother-in-law also went to the CIG
headquarters aboard their own vehicle. Atty. Armovit questioned the legality of the warrantless
arrest before CIG Legal Officer Ruben Zacarias. After consulting with his superiors, Legal
Officer Zacarias ordered to stop the arrest and allowed petitioner to go home. Atty. Armovit
made an undertaking in writing that he and petitioner would appear before the Cebu City
Prosecutor on September 17, 1997 for preliminary investigation.
An arrest is defined as the taking of a person into custody in order that he may be bound to
answer for the commission of an offense.14 It is made by an actual restraint of the person to be
arrested, or by his submission to the custody of the person making the arrest. 15 An arrest
signifies restraint on person, depriving one of his own will and liberty, binding him to become
obedient to the will of the law.16 The foregoing facts show no restraint upon the person of
petitioner. Neither do they show that petitioner was deprived of his own will and liberty. Hence,
Section 7 of Rule 112 does not apply to petitioner.

To be sure, even if petitioner were arrested by the PNP CIG personnel, such arrest would still be
illegal because of the absence of a warrant. Section 5 of Rule 113 states when a warrantless
arrest is deemed lawful, thus:
Sec. 5. Arrest without a warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
It does not appear in the case at bar that petitioner has just committed, is actually committing or
is attempting to commit an offense when the police officers tried to arrest him on September 15,
1997. In fact, petitioner was attending classes at the Center for Culinary Arts at that time.
We reject the prosecutors' argument that petitioner was actually committing a crime at the time
of the arrest since kidnapping with serious illegal detention is a continuing crime. In the case
of Parulan v. Director of Prisons17 cited by the prosecutors, kidnapping with illegal detention is
considered a continuing crime where the deprivation of liberty is persistent and continuing from
one place to another. The facts show that the alleged kidnapping was committed on July 16,
1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan, Barangay
Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim, Jacqueline Chiong, remains
missing to date. There is no showing that at the time of the arrest on September 15, 1997,
Jacqueline Chiong was being detained by petitioner who was then residing in Quezon City.
Hence, the petitioner may not be considered as continually committing the crime of kidnapping
with serious illegal detention at the time of the arrest.
Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors assert that
petitioner is no longer entitled to a preliminary investigation because he had previously waived
his right to such investigation. In his omnibus order dated October 14, 1997, Judge Ocampo
held that petitioner waived his right to preliminary investigation when he failed to appear during
the preliminary investigation set by the City Prosecutor in the afternoon of September 17, 1997,
despite the express warning that "failure of the counsel (to present the petitioner to the Cebu
City Prosecutor on said time and date) would be treated as a waiver of his client's right to
preliminary investigation."
We disagree. A waiver, whether express or implied, must be made in clear and unequivocal
manner. Mere failure of petitioner and his counsel to appear before the City Prosecutor in the
afternoon of September 17, 1997 cannot be construed as a waiver of his right to preliminary

investigation, considering that petitioner has been vigorously invoking his right to a regular
preliminary investigation since the start of the proceedings before the City Prosecutor. At 9:00 in
the morning of September 17, 1997, petitioner's counsel appeared before the City Prosecutor of
Cebu and moved that petitioner be accorded a regular preliminary investigation. The City
Prosecutor, however, denied the motion, stating that petitioner is entitled only to an inquest
investigation. Petitioner orally moved for a reconsideration, to no avail. Petitioner assailed the
decision of the City Prosecutor before the Court of Appeals on a petition for certiorari, prohibition
and mandamus. After the Court of Appeals dismissed said petition, petitioner went to this Court,
still asserting that he should be accorded a regular preliminary investigation.
Furthermore, petitioner and his counsel cannot be faulted for their refusal to comply with the
City Prosecutor's directive to appear before him in the afternoon of September 17, 1997 for
preliminary investigation. As stated above, petitioner's counsel appeared before the City
Prosecutor earlier that day and specifically demanded a regular preliminary investigation for his
client. The City Prosecutor, however, insisted that petitioner was entitled only to an inquest
investigation which he scheduled in the afternoon of the same day. Petitioner and his counsel
refused to submit to such investigation as it might be construed as a waiver of petitioner's right
to a regular preliminary investigation.
Our ruling is not altered by the fact that petitioner has been arraigned on October 14, 1997. The
rule is that the right to preliminary investigation is waived when the accused fails to invoke it
before or at the time of entering a plea at arraignment.18 Petitioner, in this case, has been
actively and consistently demanding a regular preliminary investigation even before he was
charged in court. Also, petitioner refused to enter a plea during the arraignment because there
was a pending case in this Court regarding his right to avail of a regular preliminary
investigation.19Clearly, the acts of petitioner and his counsel are inconsistent with a waiver.
Preliminary investigation is part of procedural due process. It cannot be waived unless the
waiver appears to be clear and informed.
The nest question is whether petitioner should be released from detention pending the
investigation.
We rule in the negative.
The records show that on September 17, 1997, two informations were filed against petitioner for
kidnapping and serious illegal detention. 20 Executive Judge Priscila Agana issued a warrant of
arrest on September 19, 1997.21Petitioner was arrested on September 22, 1997 by virtue of said
warrant. We held in Sanchez v. Demetriou22 that the filing of charges and the issuance of the
warrant of arrest against a person invalidly detained will cure the defect of that detention or at
least deny him the right to be released because of such defect. The Court ruled:
The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the
Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by
virtue of the warrant of arrest it issued on August 26, 1993 against him and the other
accused in connection with the rape-slay cases. It was belated, to be sure, but it was
nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the trial court still
lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the
accused objects to the jurisdiction of the court over his person, he may move to quash

the information, but only on that ground. If, as in this case, the accused raises other
grounds in the motion to quash, he is deemed to have waived that objection and to have
submitted his person to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested,
Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection
with Criminal Cases Nos. 93-124634 to 93-124637 for violation of R.A. No. 6713.
Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant
served as the initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and the issuance of
the corresponding warrant of arrest, against a person invalidly detained will cure the
defect of that detention or at least deny him the right to be released because of such
defect. Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of
Court that:
Sec. 4. When writ is not allowed or discharge authorized. If it appears
that the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines or of a person suffering imprisonment
under lawful judgment.
In one case, the petitioner sued on habeas corpus on the ground that she had been
arrested by virtue of a John Doe warrant. In their return, the respondents declared that a
new warrant specifically naming her had been issued, thus validating her detention.
While frowning at the tactics of the respondents, the Court said:
The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and
the Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it
will be followed by her immediate re-arrest pursuant to the new and valid
warrant, returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court more recently in the Umil
case. 23 (citations omitted)
We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation Center is legal
in view of the information and the warrant of arrest against him. The absence of a preliminary
investigation will not justify petitioner's release because such defect did not nullify the
information and the warrant of arrest against him.24 We ruled in Sanciangco, Jr. v. People:25

The absence of preliminary investigations does not affect the court's jurisdiction over the
case. Nor do they impair the validity of the information or otherwise render it defective;
but, if there were no preliminary investigations and the defendants, before entering their
plea, invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted.26
As regards petitioner's motion to change the venue and the authority to conduct the preliminary
investigation, we are constrained to dismiss the same for lack of jurisdiction. The holding of a
preliminary investigation is a function of the Executive Department and not of the
Judiciary.27 Petitioner should therefore address their plea to the Department of Justice that has
control and supervision over the conduct of preliminary investigations.
Nonetheless, even if the Court had jurisdiction over the issue, petitioner's motion should still be
denied because it failed to allege and prove that the City Prosecutor of Cebu has been actually
affected by the publicity. We held inWebb v. De Leon:28
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content of the publicity that
attended the investigation of petitioners fatally infected the fairness and impartiality of
the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the
sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor
and Senior State Prosecutors. Their long experience in criminal investigation is a factor
to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was conducted
despite its summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel on the ground of
bias resulting from their bombardment of prejudicial publicity.29
We further held in People v. Teehankee:30
We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now,
we rule that the right of an accused to a fair trial is not incompatible to a free press. To
be sure, responsible reporting enhances an accused's right to a fair trial for, as well
pointed out, "a responsible press has always been regarded as the handmaiden of
effective judicial administration, especially in the criminal field . . . ." The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny
and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of the appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as they happen straight to our
breakfast tables and to our bedrooms. These news form part of our everyday menu of
the facts and fictions of life. For another, our idea of a fair and impartial judge is not that
of a hermit who is out of touch with the world. We have not installed the jury system
whose members are overly protected from publicity lest they lose their impartiality.
Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put
them all in better perspective when he observed: "When a gentleman of high social
standing, intelligence, and probity swears that testimony given under the same oath will
outweigh with him, street talk and newspaper reports based upon mere hearsay, he is
worth a hundred jurymen who will swear to their own ignorance and stupidity . . . . Why
could not the jury law be so altered as to give men of brains and honesty an equal
chance with fools and miscreants?" Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a litigation. Their
mere exposure to publications and publicity stunts does not per se fatally infect their
impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge
due to the barrage of publicity that characterized the investigation and trial of the case.
In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice
and adopted the test of actual prejudice as we ruled that to warrant a finding or
prejudicial publicity, there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at bar,
the records do not show that the trial judge developed actual bias against appellant as a
consequence of the extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove this actual bias and he has not
discharged the burden.31
We likewise dismiss the complaint filed by Judge Martin A. Ocampo against Attorneys
Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido for lack of concrete evidence to
prove that said lawyers deliberately withheld from the Court the orders he issued with intent to
mislead the Court.
Finally, we also deny the motion of the prosecutors to dismiss the petition on the ground that it
was not filed by the proper party. The prosecutors argue that petitioner Francisco Juan
Larranaga is no longer a minor under R.A. 6809, thus, his mother, Margarita G. Larranaga, does
not have the authority to file the instant petition as his representative. It appears, however, that
on October 6, 1997, petitioner's mother filed a supplemental petition forhabeas corpus on his
behalf. This converted the petition at bar to one for habeas corpus. Section 3, Rule 102 of the
Revised Rules of Court states that a petition for habeas corpus may be filed either by the party
for whose relief it is intended or by some person on his behalf.
IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of the City
Prosecutor of Cebu to conduct a regular preliminary investigation of petitioner and to the
Presiding Judge of RTC, Branch 7, Cebu City to cease and desist from proceeding with the trial
of petitioner until a preliminary investigation shall have been conducted; (2) SET ASIDE our

order to immediately release petitioner pending the preliminary investigation and thus DENY
petitioner's urgent motion to implement petitioner's release; (3) DISMISS Judge Ocampo's
complaint against Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido;
and (4) DENY petitioner's motion to change the venue and the authority to conduct the
preliminary investigation.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA
G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch
274, respondents, LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.

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

PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition
and mandamuswith application for temporary restraining order and preliminary injunction to: (1)
annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges
Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents
from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said
criminal case or include Jessica Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1994, the National Bureau of
Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners
Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime
of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors
headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary
investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N.
Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their
home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement
dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the
commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the
Webb family in the persons of Nerissa E. Rosales and Mila S.Gaviola; 8 (3) the sworn-statement
of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines
Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was
his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of
Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the
crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the
Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano
Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they
showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen
(19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for
Production And Examination of Evidence and Documents for the NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to
and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A.
Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated
October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report
dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica
Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other
police agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This
compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of
Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement.
He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a
copy of said original in compliance with a subpoena duces tecum. The original was then
submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears,
however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of
Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at
bar as he went to the United States on March 1, 1991 and returned to the Philippines on
October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia
Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further
support his defense, he submitted documentary evidence that he bought a bicycle and a 1986
Toyota car while in the United States on said dates 14 and that he was issued by the State of

California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise
submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US
Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco,
California on March 9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy"
Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements,
responses, and a motion to dismiss denying their complicity in the rape-killing of the
Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their
counter-affidavits though they were served with subpoena in their last known address. 17In his
sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29,
1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends,
Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He
claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold
respondents for trial" and recommending that an Information for rape with homicide be filed
against petitioners and their co-respondents, 18 On the same date, it filed the corresponding
Information 19 against petitioners and their co-accused with the Regional Trial Court of
Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258
presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul
de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the
petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to
avoid any suspicion about his impartiality considering his employment with the NBI before his
appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita
Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On
August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp
Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave
themselves up to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino
gravely abused their discretion when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion
in holding that there is probable cause to charge them with the crime of rape with homicide; (3)
the DOJ Panel denied them their constitutional right to due process during their preliminary
investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to
charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May
22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They
hammer on alleged material inconsistencies between her April 28, 1995 and May 22,

1995 sworn statements. They assail her credibility for her misdescription of petitioner
Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ
Panel when it did not examine witnesses to clarify the alleged incredulities and
inconsistencies in the sworn statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of
Rule 112 provides that a preliminary investigation should determine " . . . whether there
is a sufficient ground to engender a well-grounded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty
thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure
in conducting a preliminary investigation, thus:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed
without a preliminary investigation having been first conducted in the following
manner:
(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents, in such number of copies as there are respondents, plus
two (2) copies for the official file. The said affidavits shall be sworn to before any
fiscal, state prosecutor or government official authorized to administer oath, or, in
their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss the same if he finds no ground to continue with the inquiry, or
issue a subpoena to the respondent, attaching thereto a copy of the complaint,
affidavits and other supporting documents. Within ten (10) days from receipt
thereof, the respondent shall submit counter-affidavits and other supporting
documents. He shall have the right to examine all other evidence submitted by
the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the
respondent shall also be sworn to and certified as prescribed in paragraph (a)
hereof and copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
base his resolution on the evidence presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he
may set a hearing to propound clarificatory questions to the parties or their
witnesses, during which the parties shall be afforded an opportunity to be present

but without the right to examine or cross-examine. If the parties so desire, they
may submit questions to the investigating officer which the latter may propound
to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating
officer shall resolve the case within ten (10) days therefrom. Upon the evidence
thus adduced, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information. He
shall certify under oath that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses, that there is reasonable ground
to believe that a crime has been committed and that the accused is probably guilty
thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which protects "the right of the
people to be secure in their persons . . . against unreasonable searches and seizures of
whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a
person, and violates the privacy of persons which ought not to be intruded by the
State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction.
Continuing accretions of case law reiterate that they are facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been committed by
the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable
caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous
and their reference is not to a person with training in the law such as a prosecutor or a judge but
to the average man on the street. 25 It ought to be emphasized that in determining probable
cause, the average man weighs facts and circumstances without resorting to the calibrations of
our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely
abused its discretion when it found probable cause against the petitioners. Petitioners
belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously
described petitioner Webb's hair as semi-blond and (b) she committed material
inconsistencies in her two (2) sworn statement, thus: 26
xxx xxx xxx
To illustrate, the following are some examples of inconsistencies in the two sworn
statements of Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before June 29, 1991.

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

1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that
night. She just said "on the following day I read in the newspaper
that there were three persons who were killed . . ."
Second Affidavit: "I peeped through the first door on the left. I saw
two bodies on top of the bed, bloodied, and in the floor, I saw
Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare buttocks, on
top of Carmela and pumping, her mouth gagged and she was
moaning and I saw tears on her eyes."
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: "by jumping over the fence, which was only a little
more than a meter high."
Second Affidavit: They "entered the gate which was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate leading to the
dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and
inconsistencies did not erode the credibility of Alfaro. We quote the pertinent
ruling, viz.: 27
xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for purposes of
argument merely that she is a co-conspirator, it is well to note that confessions of
a co-conspirator may be taken as evidence to show the probability of the co-

conspirator's participation in the commission of the crime (see People vs.

Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved
by direct evidence of prior agreement to commit the crime. Indeed, "only rarely
would such a prior agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by agreements in writing.
Thus, conspiracy may be inferred from the conduct of the accused before, during
and after the commission of the crime, showing that the several accused had
acted in concert or in unison with each other, evincing a common purpose or
design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted;
People vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two
sworn statements. InAngelo, the Court refused to discredit the testimony of a
witness accusing therein petitioner for the slaying of one Gaviano Samaniego
even though said witness failed to name Angelo in his affidavit which was
executed five (5) months earlier. Granting, the Court continued, that a part of the
witness' testimony is untrue, such circumstance is not sufficient to discredit the
entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb submitted his
memorandum suggesting that the instant complaint "should not be decided within
the month to give time to the NBI to coordinate with the FBI on the latter's inquiry
into the whereabouts of Hubert Webb . . . and to check on our U.S.-based
witnesses."
In said memorandum, counsel for respondent Webb calls for the application of
the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of
Alfaro's statements, among others. This is untenable. As held in Angelo:
There is no rule of law which prohibits a court from crediting part
of the testimony of a witness as worthy of belief and from
simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in
omnibus is not a rule of law, let alone a general rule of law which
is universally applicable. It is not a legal presumption either. It is
merely a latinism describing the conclusion reached by a court in
a particular case after ascribing to the evidence such weight or
lack of weight that the court deemed proper.
In the case before us, complainant reasoned out that Alfaro was then having
reservations when she first executed the first statement and held back vital
information due to her natural reaction of mistrust. This being so, the panel
believes that the inconsistencies in Alfaro's two sworn statements have been

sufficiently explained especially specially so where there is no showing that the

inconsistencies were deliberately made to distort the truth. Consequently, the
probative value of Alfaro's testimony deserves full faith and credit. As it has been
often noted, ex parte statements are generally incomplete because they are
usually executed when the affiant's state of mind does not give her sufficient and
fair opportunity to comprehend the import of her statement and to narrate in full
the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994];
Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a
crime has been committed and what is clear before us is that the totality of the
evidence submitted by the complainant indicate a prima faciecase that
respondents conspired in the perpetration of the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of
counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was
planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the
supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the
Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a
paramour of Gerardo Biong. The Panel assayed their statements as follows: 29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the Webb family, on
June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was
at home inside his room with two male visitors. She knew it because she and her
co-housemaid, Loany, were instructed by Hubert to bring them three glasses of
juice. It was the last time she saw Hubert and was later told by then
Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who
served as a laundry woman, claims, aside from corroborating the statement of
Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the
morning and as what she used to do, she entered the rooms of the Webbs to get
their clothes to be washed. As a matter of fact, in that early morning, she entered
Hubert's room and saw Hubert, who was only wearing his pants, already awake
and smoking while he was sitting on his bed. She picked up Hubert's scattered
clothes and brought them together with the clothes of the other members of the
family to the laundry area. After taking her breakfast, she began washing the
clothes of the Webbs. As she was washing the clothes of Hubert Webb, she
noticed fresh bloodstains in his shirt. After she finished the laundry, she went to
the servant's quarters. But feeling uneasy, she decided to go up to the stockroom
near Hubert's room to see what he was doing. In the said stockroom, there is a
small door going to Hubert's room and in that door there is a small opening
where she used to see Hubert and his friends sniffing on something. She

observed Hubert was quite irritated, uneasy, and walked to and from inside his
room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon
and came back at around 4:00 in the same afternoon and went inside his room
using the secret door of the house. It was the last time that she saw Hubert until
she left the Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about
10:00 in the morning, he was at the Ninoy Aquino International Airport as he was
then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon
for New York. At the airport's lobby, he saw then Congressman Freddie Webb
with a male companion. He greeted him and Webb answered: "Mabuti naman, at
ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because
he often watched him then in a television show "Chicks to Chicks." He observed
that the man whom Freddie Webb referred to as his son, was of the same height
as Freddie. The son referred to has fair complexion with no distinguishing marks
on his face. He (son of Webb) was then wearing a striped white jacket. When he
and his children were already inside the plane, he did not see Freddie anymore,
but he noticed his son was seated at the front portion of the economy class. He
never noticed Freddie Webb's son upon their arrival in San Francisco. He claims
that, while watching the television program "DONG PUNO LIVE" lately, he saw
the wife of Freddie Webb with her lawyer being interviewed, and when she
described Hubert as "moreno" and small built, with a height of five feet and seven
inches tall, and who was the one who left for United States on March 9, 1991, he
nurtured doubts because such description does not fit the physical traits of the
son of Freddie, who left with him for United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with
him for almost three (3) years and in fact, she had a child with him who is now
four (4) years old. Their relationship started in February, 1991 until she broke up
with him in September 1993. She recalls that on June 29, 1991, at around 6:00
p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo
located at the back of the Paraaque Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the radio operator of the
Paraaque police told Biong that he has a phone call. Before Biong went to the
radio room, she was instructed to take him over and after somebody won the
game, she followed Biong at the radio room where she overheard him uttering,
"Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o
sige." When he put the phone down, Biong told her, "Mayroon lang akong
rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow,
arrived with a male passenger sitting at the backseat and parked near the

canteen. After it made some signals by blinking its headlight, Biong rode thereat
at the front seat beside the driver and then, they left. She was not able to
recognize the male passenger because the window of the taxi was tinted. Biong
came back at around 7:00 of the same morning and when he arrived, he
immediately washed his hands and face, and took his handkerchief from his
pocket which he threw at the trash can. She asked him why he threw his
handkerchief and he answered, "Hmp . . . amoy tae." She inquired what
happened in BF Homes and he replied, "Putang inang mga batang iyon,
pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his office where she
observed him doing something in his steel cabinet while he appeared to be
uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and
said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong
answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome
who offered to accompany him and with whom she asked permission to go with
them. Before they proceeded to the place where the killings happened, she
asked Biong if he knew the exact address and the latter immediately responded,
"Alam ko na yon." She was surprised because Galvan never told him the place of
the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the
housemaids to contact the victim's relatives, while the security guard fetched the
barangay chairman and the president of the Homeowners Association. When all
these persons were already in the house, Biong started recording the wounds of
the victim. Inside the master's bedroom, she saw Biong took a watch from the
jewelry box. Because she could not tolerate the foul odor, she and Capt.
Bartolome went out of the room and proceeded to the dining area. On top of the
dining table, she saw the scattered contents of a shoulder bag. Moments later,
Biong came out from the room and proceeded to the front door to remove the
chain lock; asked the keys from the housemaid and it was only then that the main
door was opened. Biong noticed a stone in front of the broken glass of the door
and requested Capt. Bartolome to go inside the servant's quarters as he doubted
the housemaids' claim that they heard nothing unusual. Using the handle of his
gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being
broken. At the garage, Biong also noticed same marks on the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together
with the Vizconde housemaids. When Biong was preparing to take a bath, she
saw him remove from his pocket the things she also saw from Vizconde's
residence, to wit: calling cards, driver's license, ATM card, a crossed check worth
P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the
jewelry box inside the room of the Vizcondes. These jewelry items were later

pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow

restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from
his locker at the Paraaque Police Station an imported brown leather jacket,
which the latter claimed to have been given to him by the person who called him
up in the early morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in
1993. She observed that Biong seemed not interested in pursuing the
investigation of the Vizconde case. In fact, when Biong and this group picked up
Mike Gatchalian and brought him to the Paraaque Police Station, she was
surprised that Biong halted the investigation when Gatchalian was profusely
sweating while being interrogated. After the father of Gatchalian talked to Colonel
Pureza, the latter called up and instructed Biong to bring Gatchalian to him
(Colonel Pureza) and that was the last thing she remembered regarding this
case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of
petitioners. It ruled:30
xxx xxx xxx
The voluminous number of exhibits submitted by respondent Webb to support his
defense of denial and alibi notwithstanding, the panel, after a careful and
thorough evaluation of the records, believes that they cannot outweigh the
evidence submitted by the complainant. Alibi cannot prevail over the positive
identification made by a prosecution witness. Verily, alibi deserves scant
consideration in the face of positive identification especially so where the claim of
alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA
124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).
Similarly, denial is a self-serving negative which cannot be given greater
evidentiary weight than the declaration of a credible witness who testified on
affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial,
like alibi, is weak and becomes even more weaker when arrayed against the
positive identification by the witness for the prosecution (People vs. Onpaid, 233
SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom
he claimed was with him watching video tapes at the Syyap residence. Other
than claiming that he "was not and could not have been at or near the area of the
Vizconde residence at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his claim of alibi.
xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his
alibi in the form of documents tending to show that he was thousands of miles
away when the incident occurred. We have carefully deliberated and argued on
the evidence submitted by respondent Webb in support of his absence from the
country since March 9, 1991 to October 26, 1992 and found the same wanting to
exonerate him of the offense charged. The material dates in this case are June
29 and 30, 1991. While respondent Webb may have submitted proof tending to
show that he was issued a California driver's license on June 14, 1991, there is
no showing that he could not have been in the country on the dates above
mentioned. Neither do we find merit in the allegation that respondent Webb
personally bought a bicycle on June 30, 1991 in California in view of his positive
identification by Alfaro and the two (2) househelps of the Webb family who
testified that he was here in the country on said dates. Additionally, the issuance
of receipt evidencing the purchase of a bicycle in California is no conclusive proof
that the name appearing thereon was the actual buyer of the merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that
the DOJ Panel did not gravely abuse its discretion when it found probable cause against
the petitioners. A finding of probable cause needs only to rest on evidence showing
that more likely than not a crime has been committed and was committed by the
suspects. Probable cause need not be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond reasonable doubt and definitely, not on
evidence establishing absolute certainty of guilt. As well put in Brinegar v. United
States, 31 while probable cause demands more than "bare suspicion," it requires "less
than evidence which would justify . . . conviction." A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of
probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in
refusing to call the NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-examine
his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly
adjudged that enough evidence had been adduced to establish probable cause and
clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de Leon and,
later, respondent Judge Amelita Tolentino issued warrants of arrest against them without

conducting the required preliminary examination. Petitioners support their stance by

highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few
hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to
the trial court were incomplete and insufficient from which to base a finding of probable
cause; and (4) that even Gerardo Biong who was included in the Information as a mere
accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate
that it was impossible to conduct a "searching examination of witnesses and evaluation
of the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by
no less than the fundamental law of the land. Section 2 of Article III of the Constitution
provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce and particularly describing the place to be searched and the
persons or things to be seized.
The aforequoted provision deals with the requirements of probable cause both with
respect to issuance of warrants of arrest or search warrants. The similarities and
differences of their requirements ought to be educational. Some of them are pointed out
by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same
quantum of evidence is required whether one is concerned with probable cause to arrest
or probable cause to search. But each requires a showing of probabilities as to
somewhat different facts and circumstances, and thus one can exist without the other. In
search cases, two conclusions must be supported by substantial evidence: that the
items sought are in fact seizable by virtue of being connected with criminal activity, and
that the items will be found in the place to be searched. It is not also necessary that a
particular person be implicated. By comparison, in arrest cases there must be probable
cause that a crime has been committed and that the person to be arrested committed it,
which of course can exist without any showing that evidence of the crime will be found at
premises under that person's control." Worthy to note, our Rules of Court do not provide
for a similar procedure to be followed in the issuance of warrants of arrest and search
warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that
"upon filing of an information, the Regional Trial Court may issue a warrant for the arrest
of the accused." In contrast, the procedure to be followed in issuing search warrants is
more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue
but upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. The judge must, before issuing
the warrant, personally examine in the form of searching questions and answers,
in writing and under oath the complainant and any witnesses he may produce on
facts personally known to them and attach to the record their sworn statements
together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. If the judge is thereupon
satisfied of the facts upon which the application is based, or that there is
probable cause to believe that they exist, he must issue the warrant, which must
be substantially in the form prescribed by these Rules.
We discussed the difference in the Procedure of issuing warrants of arrest and search
warrants in Soliven vs. Makasiar, 33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent
provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons
or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of
probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of

the issuing judge to satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusions as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the
submission of petitioners that respondent judges should have conducted "searching
examination of witnesses" before issuing warrants of arrest against them. They also
reject petitioners' contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of
Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two
(2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita
Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking
recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both
judges that there is probable cause to issue warrants of arrest against petitioners. Again,
we stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certaintyof guilt of an accused. In doing so, judges do not conduct
a de novo hearing to determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it took the respondent
judges a few hours to review and affirm the probable cause determination of the DOJ
Panel does not mean they made no personal evaluation of the evidence attached to the
records of the case. 36
Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to show the existence of probable cause.
Not even the corpus delicti of the crime was established by the evidence of the
prosecution in that case. Given the clear insufficiency of the evidence on record, we
stressed the necessity for the trial judge to make a further personal examination of the
complainant and his witnesses to reach a correct assessment of the existence or non-

existence of probable cause before issuing warrants of arrest against the accused. The
case at bar, however, rests on a different factual setting. As priorly discussed, the
various types of evidence extant in the records of the case provide substantial basis for
a finding of probable cause against the petitioner. The corpus delicti of the crime is a
given fact. There is an eyewitness account of the imputed crime given by Alfaro. The
alibi defense of petitioner Webb is also disputed by sworn statements of their former
maids. It was therefore unnecessary for the respondent judges to take the further step of
examining ex parte the complainant and their witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due process and
violation of their right to an impartial investigation. They decry their alleged hasty and
malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial
publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct
the preliminary investigation with indecent haste. Petitioners were given fair opportunity
to prove lack of probable cause against them. The fairness of this opportunity is well
stressed in the Consolidated Comment of the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were afforded all the
opportunities to be heard. Petitioner Webb actively participated in the preliminary
investigation by appearing in the initial hearing held on June 30, 1995 and in the
second hearing on July 14, 1995; and by filing a "Motion for Production and
Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a
"Reply to the compliance and Comment/Manifestation to the Motion for
Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a
"Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "CounterAffidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August
1, 1995. Numerous letter-requests were also sent by the petitioner Webb's
counsel to the DOJ Panel requesting the latter to furnish him a copy of the
reports prepared by the FBI concerning the petitioner's whereabouts during the
material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated
August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to
issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed
a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional
Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to
produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p.
4, Petition) The said court dismissed the petition after Mercader produced and
submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on
the admissibility and credence of the two (2) conflicting and inconsistent sworn
statements of the principal witness, Alfaro. (Attached hereto is a copy of the order

of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995)

marked as Annex "F."
It must also be pointed out that despite the declaration by the DOJ Panel that the
preliminary investigation was to be terminated after the hearing held on July 14,
1995, the panel continued to conduct further proceedings, e.g. comparison of the
photo-copies of the submitted documents with the originals on July 17, 1995. (p.
7, Petition) The panel even entertained the "Response" submitted by accused
Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the
panel even announced that any party may submit additional evidence before the
resolution of the case. (p. 8, Petition) From the time the panel declared the
termination of the preliminary investigation on July 14, 1995, twenty-seven (27)
days elapsed before the resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Paraaque on August 10, 1995.
This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules
of Court that the investigating officer shall resolve the case within ten (10)
days from the termination of the preliminary investigation. The DOJ Panel
precisely allowed the parties to adduce more evidence in their behalf and for the
panel to study the evidence submitted more fully. This directly disputes the
allegation of the petitioners that the resolution was done with indecent haste in
violation of the rights of the petitioners. During the period of twenty-seven (27)
days, the petitioners were free to adduce and present additional evidence before
the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process during
the conduct of the preliminary investigation simply because the DOJ Panel
promulgated the adverse resolution and filed the Information in court against
them.
Petitioners cannot also assail as premature the filing of the Information in court against
them for rape with homicide on the ground that they still have the right to appeal the
adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said
Information is in accord with Department of Justice Order No. 223, series of 1993, dated
June 25, 1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor finding probable causeexcept upon showing of manifest error or
grave abuse of discretion. Notwithstanding the showing of manifest error or
grave abuse of discretion, no appeal shall be entertained where the appellant
had already been arraigned. If the appellant is arraigned during the pendency of
the appeal, said appeal shall be dismissed motu propio by the Secretary of
Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause,

however, shall not hold the filing of the information in court.
Sec. 2. When to appeal. The appeal must be filed within a period of fifteen
(15) days from receipt of the questioned resolution by the party or his counsel.
The period shall be interrupted only by the filing of a motion for reconsideration
within ten (10) days from receipt of the resolution and shall continue to run from
the time the resolution denying the motion shall have been received by the
movant or his counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in
court after the consummation of the preliminary investigation even if the accused can still
exercise the right to seek a review of the prosecutor's recommendation with the
Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information
considering her alleged conspiratorial participation in the crime of rape with homicide.
The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit
Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its
Section 10, which provides:
xxx xxx xxx
Sec. 10. State Witness. Any person who has participated in the commission of
a crime and desires to a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be admitted into the Program
whenever the following circumstances are present:
(a) the offense in which his testimony will be used is a grave felony as defined
under the R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the
offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in
order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119

of the Revised Rules of Court may upon his petition be admitted to the Program if
he complies with the other requirements of this Act. Nothing in this Act shall
prevent the discharge of an accused so that he can be used as a Witness under
Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her
non-inclusion in the criminal Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the Program. The
certification of admission into the Program by the Department shall be given full
faith and credit by the provincial or city prosecutor who is required NOT TO
INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR
INFORMATION and if included therein, to petition the court for his discharge in
order that he can be utilized as a State Witness. The court shall order the
discharge and exclusion of the said accused from the information.
Admission into the Program shall entitle such State Witness to immunity from
criminal prosecution for the offense or offenses in which his testimony will be
given or used and all the rights and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute ". . . an intrusion into judicial prerogative for it is only the court which has the
power under the Rules on Criminal Procedure to discharge an accused as a state
witness." The argument is based on Section 9, Rule 119 38which gives the court the
prerogative to approve the discharge of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty assumption that the decision whom to
prosecute is a judicial function, the sole prerogative of courts and beyond executive and
legislative interference. In truth, the prosecution of crimes appertains to the executive
department of government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor with a
wide range of discretion the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best appreciated by
prosecutors. We thus hold that it is not constitutionally impermissible for Congress to
enact R.A. No. 6981 vesting in the Department of Justice the power to determine who
can qualify as a witness in the program and who shall be granted immunity from
prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to
choose who shall be a state witness is an inherent judicial prerogative. Under this
provision, the court, is given the power to discharge a state witness only because it has
already acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an inherent
judicial function. Moreover, the Rules of Court have never been interpreted to be beyond

change by legislation designed to improve the administration of our justice system. R.A.
No. 6981 is one of the much sought penal reform laws to help government in its uphill
fight against crime, one certain cause of which is the reticence of witnesses to testify.
The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for
fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a
more effective administration of criminal justice, there was a necessity to pass a law
protecting witnesses and granting them certain rights and benefits to ensure their
appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity
of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings
during their preliminary investigation by suppressing the April 28, 1995 original copy of
the sworn statement of Alfaro and the FBI Report. The argument is novel in this
jurisdiction and as it urges an expansive reading of the rights of persons under
preliminary investigation it deserves serious consideration. To start with, our Rules on
Criminal Procedure do not expressly provide for discovery proceedings during the
preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule
117 do provide an accused the right to move for a bill of particulars and for production or
inspection of material evidence in possession of the prosecution.42 But these provisions
apply after the filing of the Complaint or Information in court and the rights are accorded
to the accused to assist them to make an intelligent plea at arraignment and to prepare
for trial. 43
This failure to provide discovery procedure during preliminary investigation does not,
however, negate its use by a person under investigation when indispensable to protect
his constitutional right to life, liberty and property. Preliminary investigation is not too
early a stage to guard against any significant erosion of the constitutional right to due
process of a potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a crime. We hold
that the finding of a probable cause by itself subjects the suspect's life, liberty and
property to real risk of loss or diminution. In the case at bar, the risk to the liberty of
petitioners cannot be understated for they are charged with the crime of rape with
homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of
preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary
investigation conducted by one whose high duty is to be fair and impartial. 44 As this
Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary
investigation conducted before being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other penalty, is not a mere formal or
technical right; it is a substantive right." A preliminary investigation should therefore be
scrupulously conducted so that the constitutional right to liberty of a potential accused

can be protected from any material damage. We uphold the legal basis of the right of
petitioners to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to the
issue of their probable guilt. The right is rooted on the constitutional protection of due
process which we rule to be operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during
the preliminary investigation the filing of a sworn complaint, which shall ". . . state the
known address of the respondent and be accompanied by affidavits of the complainant
and his witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States
Supreme Court held that "suppression of evidence favorable to an accused upon
request violates due process where the evidence is material to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935
case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's
intentional use of perjured testimony to procure conviction violates due process. Thus,
evolved jurisprudence firming up the prosecutor's duty to disclose to the defense
exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan
in Brady 49 "society wins not only when the guilty are convicted but when criminal trials
are fair." Indeed, prosecutors should not treat litigation like a game of poker where
surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in
their favor, we are not prepared to rule that the initial non-production of the original
sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable
likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI,
on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28,
1995 sworn statement. It explained it cannot produce the original as it had been lost.
Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from
Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As
petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn
statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to
the DOJ Panel then still conducting their preliminary investigation the exculpatory
aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found
probable cause to charge them despite the alleged material discrepancies between the
first and second sworn statements of Alfaro. For reasons we have expounded, this
finding of probable cause cannot be struck down as done with grave abuse of
discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of
petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in
light of the totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due
to the prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process
while undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.
In floating this issue, petitioners touch on some of the most problematic areas in
constitutional law where the conflicting demands of freedom of speech and of the press,
the public's right to information, and an accused's right to a fair and impartial trial collide
and compete for prioritization. The process of pinpointing where the balance should be
struck has divided men of learning as the balance keeps moving either on the side of
liberty or on the side of order as the tumult of the time and the welfare of the people
dictate. The dance of balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our
daily diet of facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of which are sober and
sublime. Indeed, even the principal actors in the case the NBI, the respondents, their
lawyers and their sympathizers have participated in this media blitz. The possibility of
media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be
completely closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, 53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws were
adopted, criminal trials both here and in England had long been presumptively
open, thus giving assurance that the proceedings were conducted fairly to all
concerned and discouraging perjury, the misconduct of participants, or decisions
based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs,
a community reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility, and emotion. To work effectively, it is
important that society's criminal process "satisfy the appearance of justice," Offutt
v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be
provided by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries past,

it must be concluded that a presumption of openness inheres in the very nature

of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the
First Amendment, share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. In
guaranteeing freedoms such as those of speech and press, the First Amendment
can be read as protecting the right of everyone to attend trials so as to give
meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of
speech and press, standing alone, prohibit government from summarily closing
courtroom doors which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also relevant,
having been regarded not only as an independent right but also as a catalyst to
augment the free exercise of the other First Amendment rights with which it was
deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally
and representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of
what takes place.
(c) Even though the Constitution contains no provision which by its terms
guarantees to the public the right to attend criminal trials, various fundamental
rights, not expressly guaranteed, have been recognized as indispensable to the
enjoyment of enumerated rights. The right to attend criminal trials is implicit in the
guarantees of the First Amendment; without the freedom to attend such trials,
which people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content, of the publicity that
attended the investigation of petitioners fatally infected the fairness and impartiality of
the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the
sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor
and Senior State Prosecutors. Their long experience in criminal investigation is a factor
to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence except evidence

properly adduced by the parties. The length of time the investigation was conducted
despite its summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel on the ground of
bias resulting from their bombardment of prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as
petitioners will now have to undergo trial on the merits. We stress that probable cause is
not synonymous with guilt and while the light of publicity may be a good disinfectant of
unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without
imposing on the trial judge the difficult task of supervising every specie of speech
relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in
high profile criminal cases to control publicity prejudicial to the fair administration of
justice. 55 The Court reminds judges that our ability to dispense impartial justice is an
issue in every trial and in every criminal prosecution, the judiciary always stands as a
silent accused. More than convicting the guilty and acquitting the innocent, the business
of the judiciary is to assure fulfillment of the promise that justice shall be done and is
done and that is the only way for the judiciary to get an acquittal from the bar of public
opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of
discretion on the part of the respondents. Costs against petitioners.
SO ORDERED.
Regalado, J., concurs.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.

Separate Opinion

FRANCISCO, J., concurring:

The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an

information and the issuance of warrants of arrest against them were without probable
cause. Petitioners, in my considered view, failed to make a case to warrant the Court's
interference.
Preliminary investigation, unlike trial, is summary in nature, the purpose of which is
merely to determine whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86,
92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give
deference, in the absence of a clear showing of arbitrariness, as in this case, to the
finding and determination of probable cause by prosecutors in preliminary investigations.
If not, the functions of the courts will be unduly hampered by innumerable petitions
compelling the review of the exercise of discretion on the part of fiscals or prosecuting
attorneys if each time they decide to file an information in court their finding can be
immediately brushed aside at the instance of those charged (Ocampo IV v.
Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at
unmeritorious moves that could give a dent in the efficient and effective administration of
justice.
Petitioners characterize the evidence against them to be inherently weak and
uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my
mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits
over a preliminary investigation. We have had occasion to stress that trial is to be
preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity
and merits of a party's defense or accusation as well as the admissibility or
inadmissibility of testimonies and evidence are better ventilated during the trial stage
than in the preliminary investigation level. The ineluctable media attention
notwithstanding, truth as to their innocence or guilt is still best determined at the trial.
With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant,
suffice it to say that the judge does not have to personally examine the complainant and
his witnesses in order to issue a warrant of arrest as he can rely on the certification of
the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June
30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence
and sufficient basis on record that support the trial court's issuance of the warrant as
petitioners themselves do not contend that the prosecutors' certification was
unaccompanied by the records of the preliminary investigation to take their case outside
the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not
determine how cursory or exhaustive the judge's examination of the certification, report
and findings of the preliminary investigation and its annexes should be as this depends
not only upon the sound exercise of the judge's discretion in personally determining the
existence of probable cause, but also from the circumstances of each case (Lim, Sr. v.
Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer,
enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3

[m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can
not be said to be whimsical or arbitrary.
Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987
Constitution and the Rules of Court enumerate an array of rights upon which an accused
can seek protection and solace. To mention a few: he has the right to be presumed
innocent until the contrary is proved, the right against self-incrimination, the right to
remain silent, to confront and cross-examine the witnesses against him, to have a
speedy, impartial and public trial, to be heard by himself and counsel, to have competent
and independent counsel preferably of his own choice. These rights are afforded to the
accused and not to the complainant. Therefore, petitioners need not be distressed if they
henceforth go to trial.
I vote to dismiss the petitions.
Mendoza, J., concurs.

Separate Opinion
FRANCISCO, J., concurring:
The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable
cause. Petitioners, in my considered view, failed to make a case to warrant the Court's
interference.
Preliminary investigation, unlike trial, is summary in nature, the purpose of which is
merely to determine whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86,
92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give
deference, in the absence of a clear showing of arbitrariness, as in this case, to the
finding and determination of probable cause by prosecutors in preliminary investigations.
If not, the functions of the courts will be unduly hampered by innumerable petitions
compelling the review of the exercise of discretion on the part of fiscals or prosecuting
attorneys if each time they decide to file an information in court their finding can be
immediately brushed aside at the instance of those charged (Ocampo IV v.
Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at

unmeritorious moves that could give a dent in the efficient and effective administration of
justice.
Petitioners characterize the evidence against them to be inherently weak and
uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my
mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits
over a preliminary investigation. We have had occasion to stress that trial is to be
preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity
and merits of a party's defense or accusation as well as the admissibility or
inadmissibility of testimonies and evidence are better ventilated during the trial stage
than in the preliminary investigation level. The ineluctable media attention
notwithstanding, truth as to their innocence or guilt is still best determined at the trial.
With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant,
suffice it to say that the judge does not have to personally examine the complainant and
his witnesses in order to issue a warrant of arrest as he can rely on the certification of
the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June
30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence
and sufficient basis on record that support the trial court's issuance of the warrant as
petitioners themselves do not contend that the prosecutors' certification was
unaccompanied by the records of the preliminary investigation to take their case outside
the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not
determine how cursory or exhaustive the judge's examination of the certification, report
and findings of the preliminary investigation and its annexes should be as this depends
not only upon the sound exercise of the judge's discretion in personally determining the
existence of probable cause, but also from the circumstances of each case (Lim, Sr. v.
Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer,
enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3
[m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can
not be said to be whimsical or arbitrary.
Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987
Constitution and the Rules of Court enumerate an array of rights upon which an accused
can seek protection and solace. To mention a few: he has the right to be presumed
innocent until the contrary is proved, the right against self-incrimination, the right to
remain silent, to confront and cross-examine the witnesses against him, to have a
speedy, impartial and public trial, to be heard by himself and counsel, to have competent
and independent counsel preferably of his own choice. These rights are afforded to the
accused and not to the complainant. Therefore, petitioners need not be distressed if they
henceforth go to trial.
I vote to dismiss the petitions.

Mendoza, J., concurs.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch
168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE
PHILIPPINES, respondents.

FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991,
Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards
P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling
in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's
and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and
shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard
at a nearby restaurant was able to take down petitioner's car plate number. The police arrived
shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round
of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office
showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where the suspect
had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly
before the shooting. The police obtained a facsimile or impression of the credit card used by
petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a
picture of petitioner and he positively identified him as the same person who had shot Maguan.
Having established that the assailant was probably the petitioner, the police launched a
manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The
police forthwith detained him. An eyewitness to the shooting, who was at the police station at
that time, positively identified petitioner as the gunman. That same day, the police promptly filed

a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial
Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor")
informed petitioner, in the presence of his lawyers, that he could avail himself of his right to
preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of
the Revised Penal Code. Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an information
could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated
homicide, filed an information for murder 3 before the Regional Trial Court. No bail was
recommended. At the bottom of the information, the Prosecutor certified that no preliminary
investigation had been conducted because the accused did not execute and sign a waiver of the
provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor
an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that
the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been
conducted before the information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion,
wrote on the last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to
expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of
respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and
ordered his release. 7 Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation 8 and prayed that in the meantime all proceedings in the court be
suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of
Rizal an omnibus motion for immediate release and preliminary investigation, which motion had
been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail
of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus
motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary
investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution
shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the
following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48
hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted
leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3)

petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July
1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the
Supreme Court assailing the 17 July 1991 Order, contending that the information was null and
void because no preliminary investigation had been previously conducted, in violation of his
right to due process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was, however, denied by
respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his
arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial
Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same
date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court
entered for him a plea of not guilty. The Trial court then set the criminal case for continuous
hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and
22 November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He
alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier
filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled
to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition
for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas
corpus, upon the other, were subsequently consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution presented its
first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the
two (2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending
his arrest. He waived his right to preliminary investigation by not invoking it
properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991
Order because the trial court had the inherent power to amend and control its
processes so as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial
Warden), the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's
conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991,
the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the
criminal case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go;
and second, whether petitioner had effectively waived his right to preliminary investigation. We
consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case,
petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman
who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work,
petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor
General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases
consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc.,
v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although
effected fourteen (14) days after the killing in connection with which Nazareno had been
arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112
of the Rules of Court were applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing
the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because
he went to the police station six (6) days after the shooting which he had allegedly perpetrated.
Thus, petitioner argues, the crime had not been "just committed" at the time that he was
arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the
shooting of Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7,
Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary
investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the
circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court
sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen
days after the actual commission of the offenses, upon the ground that such offenses
constituted "continuing crimes." Those offenses were subversion, membership in an outlawed
organization like the New People's Army, etc. In the instant case, the offense for which petitioner
was arrested was murder, an offense which was obviously commenced and completed at one
definite location in time and space. No one had pretended that the fatal shooting of Maguan was
a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant
case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure
which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person
may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceed against in accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had
allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be
reasonably regarded as effected "when [the shooting had] in fact just been committed" within

the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal
knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived from statements made by alleged
eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to
take down the alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is
lawfully arrested without a warrant for an offense cognizable by the Regional
Trial Court the complaint or information may be filed by the offended party, peace
officer or fiscal without a preliminary investigation having been first conducted, on
the basis of the affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested
may ask for a preliminary investigation by a proper officer in accordance with this
Rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and in case of nonavailability of a lawyer, a responsible person of his choice. Notwithstanding such
waiver, he may apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been
first conducted, the accused may within five (5) days from the time he learns of
the filing of the information, ask for a preliminary investigation with the same right
to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis
supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid
the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty
of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the
latter should have immediately scheduled a preliminary investigation to determine whether there
was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as
noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised
Penal Code as a condition for carrying out a preliminary investigation. This was substantive
error, for petitioner was entitled to a preliminary investigation and that right should have been
accorded him without any conditions. Moreover, since petitioner had not been arrested, with or
without a warrant, he was also entitled to be released forthwith subject only to his appearing at
the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for
murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus
motion for immediate release and preliminary investigation. The Solicitor General contends that
that omnibus motion should have been filed with the trial court and not with the Prosecutor, and
that the petitioner should accordingly be held to have waived his right to preliminary
investigation. We do not believe that waiver of petitioner's statutory right to preliminary
investigation may be predicated on such a slim basis. The preliminary investigation was to be
conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of
petitioner's omnibus motion, the information for murder had already been filed with the Regional
Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his
omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists to warranting the prosecution of
the accused is terminated upon the filing of the information in the proper court. In
turn, as above stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be
secured. After such reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While it is true that the
fiscal has the quasi-judicial discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case thereafter
should be addressed for the consideration of the Court. The only qualification is
that the action of the Court must not impair the substantial rights of the accused.,
or the right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is
filed in Court any disposition of the case [such] 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. .
. . 20 (Citations omitted; emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a re-investigation (Crespo v. Mogul involved a reinvestigation), and since the Prosecutor himself did file with the trial court, on the 5th day
after filing the information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner's omnibus motion), we

conclude that petitioner's omnibus motion was in effect filed with the trial court. What
was crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that the trial
court was five (5) days later apprised of the desire of the petitioner for such preliminary
investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to
conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently
made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable,
the 5-day reglementary period in Section 7, Rule 112 must be held to have been
substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary investigation.
While that right is statutory rather than constitutional in its fundament, since it has in fact been
established by statute, it is a component part of due process in criminal justice. 21 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. The accused in a criminal trial is inevitably exposed to
prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity
to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right.
To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure
of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary investigation
in the instant case considering that he was already arraigned on 23 August 1991. The rule is
that the right to preliminary investigation is waived when the accused fails to invoke
it before or at the time of entering a plea at arraignment.22 In the instant case, petitioner Go had
vigorously insisted on his right to preliminary investigation before his arraignment.At the time of
his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition
and mandamusprecisely asking for a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had
waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that
appellants there had waived their right to preliminary investigation because immediately after
their arrest, they filed bail and proceeded to trial "without previously claiming that they did not
have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for
release on recognizance or on bail and for preliminary investigation in one omnibus motion. He
had thus claimed his right to preliminary investigation before respondent Judge approved the
cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the
Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he
clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate
one.
We would clarify, however, that contrary to petitioner's contention the failure to accord
preliminary investigation, while constituting a denial of the appropriate and full measure of the

statutory process of criminal justice, did not impair the validity of the information for murder nor
affect the jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to
bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence
of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of
respondent Judge recalling his own order granting bail and requiring petitioner to surrender
himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all and certainly no new or additional evidence had been submitted to
respondent Judge that could have justified the recall of his order issued just five (5) days before.
It follows that petitioner was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case,
trial on the merits has already commenced, the Prosecutor having already presented four (4)
witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly,
petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary
investigation conducted in respect of the charge against him? Does petitioner remain entitled to
be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains
entitled to a preliminary investigation although trial on the merits has already began. Trial on the
merits should be suspended or held in abeyance and a preliminary investigation forthwith
accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may
at this time have on hand, conclude that probable cause exists; upon the other hand, the
Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant
a finding of probable cause. In any event, the constitutional point is that petitioner
was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was
forced to undergo arraignment and literally pushed to trial without preliminary investigation, with
extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted
to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking .
During the proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's
vigorous protest and objection to the arraignment precisely because of the denial of preliminary
investigation. 28 So energetic and determined were petitioner's counsel's protests and objections
that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to
replace him with counsel de oficio. During the trial, before the prosecution called its first witness,
petitioner through counsel once again reiterated his objection to going to trial without preliminary
investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had
promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of
the procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did
not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because
he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to
run the risk of being held to have waived also his right to use what is frequently the only test of
truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled
to be released on bail as a matter of right. Should the evidence already of record concerning
petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move
in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a
careful and objective assessment of the evidence on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to
benefit from its own wrong or culpable omission and effectively to dilute important rights of
accused persons well-nigh to the vanishing point. It may be that to require the State to accord
petitioner his rights to a preliminary investigation and to bail at this point, could turn out
ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And,
in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the
rights and liberties of its own people and a re-affirmation of its obligation and determination to
respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order
of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of
the Court of Appeals dated 23 September 1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the
merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the
conclusion of the preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond
of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any
lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move
for cancellation of bail at the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss
for reasons why an experienced Judge should insist on proceeding to trial in a sensational
murder case without preliminary investigation inspite of the vigorous and continued objection
and reservation of rights of the accused and notwithstanding the recommendations of the
Prosecutor that those rights must be respected. If the Court had faithfully followed the Rules,
trial would have proceeded smoothly and if the accused is really guilty, then he may have been
convicted by now. As it is, the case has to go back to square one.
I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to
cater to public opinion to the detriment of the impartial administration of justice." Mass media
has its duty to fearlessly but faithfully inform the public about events and persons. However,
when a case has received wide and sensational publicity, the trial court should be doubly careful
not only to be fair and impartial but also to give the appearance of complete objectivity in its
handling of the case.
The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting
the true facts of a case is present in all cases but it is particularly important if the accused is
indigent; more so, if he is one of those unfortunates who seem to spend more time behind bars
than outside. Unlike the accused in this case who enjoys the assistance of competent counsel,
a poor defendant convicted by wide and unfavorable media coverage may be presumed guilty
before trial and be unable to defend himself properly. Hence, the importance of the court always
following the Rules.
While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing
observations because I feel they form an integral part of the Court's decision.
CRUZ, J., concurring:
I was one of the members of the Court who initially felt that the petitioner had waived the right to
preliminary investigation because he freely participated in his trial and his counsel even crossexamined the prosecution witnesses. A closer study of the record, however, particularly of the
transcript of the proceedings footnoted in theponencia, reveals that he had from the start
demanded a preliminary investigation and that his counsel had reluctantly participated in the
trial only because the court threatened to replace him with a counsel de oficio if he did not.
Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually
compelled to go to trial. Such compulsion and unjustified denial of a clear statutory right of the
petitioner vitiated the proceedings as violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but
that is not the petitioner's fault. He had the right to insist that the procedure prescribed by the
Rules of Court be strictly observed. The delay entailed by the procedural lapse and the
attendant expense imposed on the Government and the defendant must be laid at the door of
the trial judge for his precipitate and illegal action.
It appears that the trial court has been moved by a desire to cater to public opinion to the
detriment of the impartial administration of justice. The petitioner as portrayed by the media is
not exactly a popular person. Nevertheless, the trial court should not have been influenced by
this irrelevant consideration, remembering instead that its only guide was the mandate of the
law.

GRIO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4)
prosecution witnesses have already testified, among them an eyewitness who identified the
accused as the gunman who shot Eldon Maguan inside his car in cold blood, and a security
guard who identified the plate number of the gunman's car, I do not believe that there is still
need to conduct a preliminary investigation the sole purpose of which would be to ascertain if
there is sufficient ground to believe that a crime was committed (which the petitioner does not
dispute) and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the
information against him, presumably believed to be so).
In the present stage of the presentation of the prosecution's evidence, to return the case to the
Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal
Procedure would be supererogatory.
This case did not suffer from a lack of previous investigation. Diligent police work, with ample
media coverage, led to the identification of the suspect who, seven (7) days after the shooting,
appeared at the San Juan police station to verify news reports that he was the object of a police
manhunt. Upon entering the station, he was positively identified as the gunman by an
eyewitness who was being interrogated by the police to ferret more clues and details about the
crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly
filed with the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As
the victim died the next day, July 9, 1991, before an information could be filed, the First
Assistant Prosecutor, instead of filing an information for frustrated homicide, filed an information
for murder on July 11, 1991 in the Regional Trial Court, with no bail recommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary
investigation and release on bail (which was erroneously filed with his office instead of the
court), recommended a cash bond of P100,000 for his release, and submitted the omnibus
motion to the trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had
issued: (a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing,
and (b) his order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary
investigation, for he motu propio issued on July 17, 1991 another order rescinding his previous
orders and setting for hearing the petitioner's application for bail.
The cases cited in page 15 of the majority opinion in support of the view that the trial of the case
should be suspended and that the prosecutor should now conduct a preliminary investigation,
are not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People
vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because
motions to quash the information were filed by the accused.Lozada vs. Hernandez, 92 Phil.
1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People
vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary
investigations had in fact been conducted before the informations were filed in court.
It should be remembered that as important as is the right of the accused to a preliminary
investigation, it is not a constitutional right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor
impair the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute
an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil.
640).
The petitioner's motion for a preliminary investigation is not more important than his application
for release on bail, just as the conduct of such preliminary investigation is not more important
than the hearing of the application for bail. The court's hearing of the application for bail should
not be subordinated to the preliminary investigation of the charge. The hearing should not be
suspended, but should be allowed to proceed for it will accomplish a double purpose. The
parties will have an opportunity to show not only: (1) whether or not there is probable cause to
believe that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the
evidence of his guilt is strong. The judge's determination that the evidence of his guilt is strong
would naturally foreclose the need for a preliminary investigation to ascertain the probability of
his guilt.
The bail hearing may not be suspended because upon the filing of an application for bail by one
accused of a capital offense, "the judge is under a legal obligation to receive evidence with the
view of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao
vs. Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and
Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce
Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123)
The abolition of the death penalty did not make the right to bail absolute, for persons charged
with offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not
bailable (Sec. 3, Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called

down the trial court for having granted the motion for bail in a murder case without any hearing
and without giving the prosecution an opportunity to comment or file objections thereto.
Similarly this Court held in People vs. Bocar, 27 SCRA 512:
. . . due process also demands that in the matter of bail the prosecution should
be afforded full opportunity to present proof of the guilt of the accused. Thus, if it
were true that the prosecution in this case was deprived of the right to present its
evidence against the bail petition, or that the order granting such petition was
issued upon incomplete evidence, then the issuance of the order would really
constitute abuse of discretion that would call for the remedy of certiorari.
(Emphasis supplied.)
The petitioner may not be released pending the hearing of his petition for bail for it would be
incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2
SCRA 888).
I respectfully take exception to the statements in the ponencia that the "petitioner was not
arrested at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p.
130). Arrest is the taking of the person into the custody in order that he may be bound to answer
for the commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an
actual restraint of the person to be arrested, or by his submission to the custody of the person
making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police
Station on July 8, 1991, and placed himself at the disposal of the police authorities who clamped
him in jail after he was identified by an eyewitness as the person who shot Maguan, he was
actually and effectively arrested. His filing of a petition to be released on bail was a waiver of
any irregularity attending his arrest and estops him from questioning its validity (Callanta vs.
Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).
I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss
for reasons why an experienced Judge should insist on proceeding to trial in a sensational
murder case without preliminary investigation inspite of the vigorous and continued objection
and reservation of rights of the accused and notwithstanding the recommendations of the

Prosecutor that those rights must be respected. If the Court had faithfully followed the Rules,
trial would have proceeded smoothly and if the accused is really guilty, then he may have been
convicted by now. As it is, the case has to go back to square one.
I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to
cater to public opinion to the detriment of the impartial administration of justice." Mass media
has its duty to fearlessly but faithfully inform the public about events and persons. However,
when a case has received wide and sensational publicity, the trial court should be doubly careful
not only to be fair and impartial but also to give the appearance of complete objectivity in its
handling of the case.
The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting
the true facts of a case is present in all cases but it is particularly important if the accused is
indigent; more so, if he is one of those unfortunates who seem to spend more time behind bars
than outside. Unlike the accused in this case who enjoys the assistance of competent counsel,
a poor defendant convicted by wide and unfavorable media coverage may be presumed guilty
before trial and be unable to defend himself properly. Hence, the importance of the court always
following the Rules.
While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing
observations because I feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to
preliminary investigation because he freely participated in his trial and his counsel even crossexamined the prosecution witnesses. A closer study of the record, however, particularly of the
transcript of the proceedings footnoted in theponencia, reveals that he had from the start
demanded a preliminary investigation and that his counsel had reluctantly participated in the
trial only because the court threatened to replace him with a counsel de oficio if he did not.
Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually
compelled to go to trial. Such compulsion and unjustified denial of a clear statutory right of the
petitioner vitiated the proceedings as violative of procedural due process.
It is true that the ruling we lay down here will take the case back to square one, so to speak, but
that is not the petitioner's fault. He had the right to insist that the procedure prescribed by the
Rules of Court be strictly observed. The delay entailed by the procedural lapse and the
attendant expense imposed on the Government and the defendant must be laid at the door of
the trial judge for his precipitate and illegal action.
It appears that the trial court has been moved by a desire to cater to public opinion to the
detriment of the impartial administration of justice. The petitioner as portrayed by the media is
not exactly a popular person. Nevertheless, the trial court should not have been influenced by

this irrelevant consideration, remembering instead that its only guide was the mandate of the
law.

GRIO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4)
prosecution witnesses have already testified, among them an eyewitness who identified the
accused as the gunman who shot Eldon Maguan inside his car in cold blood, and a security
guard who identified the plate number of the gunman's car, I do not believe that there is still
need to conduct a preliminary investigation the sole purpose of which would be to ascertain if
there is sufficient ground to believe that a crime was committed (which the petitioner does not
dispute) and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the
information against him, presumably believed to be so).
In the present stage of the presentation of the prosecution's evidence, to return the case to the
Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal
Procedure would be supererogatory.
This case did not suffer from a lack of previous investigation. Diligent police work, with ample
media coverage, led to the identification of the suspect who, seven (7) days after the shooting,
appeared at the San Juan police station to verify news reports that he was the object of a police
manhunt. Upon entering the station, he was positively identified as the gunman by an
eyewitness who was being interrogated by the police to ferret more clues and details about the
crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly
filed with the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As
the victim died the next day, July 9, 1991, before an information could be filed, the First
Assistant Prosecutor, instead of filing an information for frustrated homicide, filed an information
for murder on July 11, 1991 in the Regional Trial Court, with no bail recommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary
investigation and release on bail (which was erroneously filed with his office instead of the
court), recommended a cash bond of P100,000 for his release, and submitted the omnibus
motion to the trial court for resolution.
Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had
issued: (a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing,
and (b) his order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary
investigation, for he motu propio issued on July 17, 1991 another order rescinding his previous
orders and setting for hearing the petitioner's application for bail.
The cases cited in page 15 of the majority opinion in support of the view that the trial of the case
should be suspended and that the prosecutor should now conduct a preliminary investigation,
are not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People

vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because
motions to quash the information were filed by the accused.Lozada vs. Hernandez, 92 Phil.
1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People
vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary
investigations had in fact been conducted before the informations were filed in court.
It should be remembered that as important as is the right of the accused to a preliminary
investigation, it is not a constitutional right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor
impair the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute
an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil.
640).
The petitioner's motion for a preliminary investigation is not more important than his application
for release on bail, just as the conduct of such preliminary investigation is not more important
than the hearing of the application for bail. The court's hearing of the application for bail should
not be subordinated to the preliminary investigation of the charge. The hearing should not be
suspended, but should be allowed to proceed for it will accomplish a double purpose. The
parties will have an opportunity to show not only: (1) whether or not there is probable cause to
believe that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the
evidence of his guilt is strong. The judge's determination that the evidence of his guilt is strong
would naturally foreclose the need for a preliminary investigation to ascertain the probability of
his guilt.
The bail hearing may not be suspended because upon the filing of an application for bail by one
accused of a capital offense, "the judge is under a legal obligation to receive evidence with the
view of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao
vs. Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and
Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce
Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123)
The abolition of the death penalty did not make the right to bail absolute, for persons charged
with offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not
bailable (Sec. 3, Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called
down the trial court for having granted the motion for bail in a murder case without any hearing
and without giving the prosecution an opportunity to comment or file objections thereto.
Similarly this Court held in People vs. Bocar, 27 SCRA 512:
. . . due process also demands that in the matter of bail the prosecution should
be afforded full opportunity to present proof of the guilt of the accused. Thus, if it
were true that the prosecution in this case was deprived of the right to present its
evidence against the bail petition, or that the order granting such petition was
issued upon incomplete evidence, then the issuance of the order would really

constitute abuse of discretion that would call for the remedy of certiorari.
(Emphasis supplied.)
The petitioner may not be released pending the hearing of his petition for bail for it would be
incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2
SCRA 888).
I respectfully take exception to the statements in the ponencia that the "petitioner was not
arrested at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p.
130). Arrest is the taking of the person into the custody in order that he may be bound to answer
for the commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an
actual restraint of the person to be arrested, or by his submission to the custody of the person
making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police
Station on July 8, 1991, and placed himself at the disposal of the police authorities who clamped
him in jail after he was identified by an eyewitness as the person who shot Maguan, he was
actually and effectively arrested. His filing of a petition to be released on bail was a waiver of
any irregularity attending his arrest and estops him from questioning its validity (Callanta vs.
Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).
I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162311

December 4, 2008

LEVI STRAUSS (PHILS.), INC., petitioner,

vs.
TONY LIM, respondent.
DECISION
REYES, R.T., J.:
THE remedy of a party desiring to elevate to the appellate court an adverse resolution of the
Secretary of Justice is a petition for certiorari under Rule 65. A Rule 43 petition for review is a
wrong mode of appeal.1

During preliminary investigation, the prosecutor is vested with authority and discretion to
determine if there is sufficient evidence to justify the filing of an information. If he finds probable
cause to indict the respondent for a criminal offense, it is his duty to file the corresponding
information in court. However, it is equally his duty not to prosecute when after an investigation,
the evidence adduced is not sufficient to establish a prima facie case.2
Before the Court is a petition for review on certiorari3 of the Decision4 and Resolution5 of the
Court of Appeals (CA), affirming the resolutions of the Department of Justice (DOJ) finding that
there is no probable cause to indict respondent Tony Lim, a.k.a. Antonio Guevarra, for unfair
competition.
The Facts
Petitioner Levi Strauss (Phils.), Inc. is a duly-registered domestic corporation. It is a whollyowned subsidiary of Levi Strauss & Co. (LS & Co.) a Delaware, USA company.
In 1972, LS & Co. granted petitioner a non-exclusive license to use its registered trademarks
and trade names6for the manufacture and sale of various garment products, primarily pants,
jackets, and shirts, in the Philippines.7Presently, it is the only company that has authority to
manufacture, distribute, and sell products bearing the LEVIS trademarks or to use such
trademarks in the Philippines. These trademarks are registered in over 130 countries, including
the Philippines,8 and were first used in commerce in the Philippines in 1946.9
Sometime in 1995, petitioner lodged a complaint10 before the Inter-Agency Committee on
Intellectual Property Rights, alleging that a certain establishment in Metro Manila was
manufacturing garments using colorable imitations of the LEVIS trademarks.11 Thus,
surveillance was conducted on the premises of respondent Tony Lim, doing business under the
name Vogue Traders Clothing Company.12 The investigation revealed that respondent was
engaged in the manufacture, sale, and distribution of products similar to those of petitioner and
under the brand name "LIVES."13
On December 13, 1995, operatives of the Philippine National Police (PNP) Criminal
Investigation Unit14 served search warrants15 on respondents premises at 1042 and 1082
Carmen Planas Street, Tondo, Manila. As a result, several items16 were seized from the
premises.17
The PNP Criminal Investigation Command (PNP CIC) then filed a complaint18 against
respondent before the DOJ for unfair competition19 under the old Article 189 of the Revised
Penal Code, prior to its repeal by Section 239 of Republic Act (RA) No. 8293.20 The PNP CIC
claimed that a "confusing similarity" could be noted between petitioners LEVIs jeans and
respondents LIVES denim jeans and pants.
In his counter-affidavit,21 respondent alleged, among others, that (1) his products bearing the
LIVES brand name are not fake LEVIS garments; (2) "LIVES" is a registered
trademark,22 while the patch pocket design for "LIVES" pants has copyright registration,23 thus

conferring legal protection on his own intellectual property rights, which stand on equal footing
as "LEVIS"; (3) confusing similarity, the central issue in the trademark cancellation
proceedings24 lodged by petitioner, is a prejudicial question that complainant, the police, and the
court that issued the search warrants cannot determine without denial of due process or
encroachment on the jurisdiction of the agencies concerned; and (4) his goods are not clothed
with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care.25
In its reply-affidavit, petitioner maintained that there is likelihood of confusion between the
competing products because: (1) a slavish imitation of petitioners "arcuate" trademark has been
stitched on the backpocket of "LIVES" jeans; (2) the appearance of the mark "105" on
respondents product is obviously a play on petitioners "501" trademark; (3) the appearance of
the word/phrase "LIVES" and "LIVES ORIGINAL JEANS" is confusingly similar to petitioners
"LEVIS" trademark; (4) a red tab, made of fabric, attached at the left seam of the right
backpocket of petitioners standard five-pocket jeans, also appears at the same place on
"LIVES" jeans; (5) the patch used on "LIVES" jeans (depicting three men on each side
attempting to pull apart a pair of jeans) obviously thrives on petitioners own patch showing two
horses being whipped by two men in an attempt to tear apart a pair of jeans; and (6) "LEVIS"
jeans are packaged and sold with carton tickets, which are slavishly copied by respondent in his
own carton ticket bearing the marks "LIVES," "105," the horse mark, and basic features of
petitioners ticket designs, such as two red arrows curving and pointing outward, the arcuate
stitching pattern, and a rectangular portion with intricate border orientation.26
DOJ Rulings
On October 8, 1996, Prosecution Attorney Florencio D. Dela Cruz recommended the
dismissal27 of the complaint. The prosecutor agreed with respondent that his products are not
clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary
care. The recommendation was approved by Assistant Chief State Prosecutor Lualhati R.
Buenafe.
On appeal, then DOJ Secretary Teofisto Guingona affirmed the prosecutors dismissal of the
complaint on January 9, 1998.28 Prescinding from the basic rule that to be found guilty of unfair
competition, a person shall, by imitation or any unfair device, induce the public to believe that
his goods are those of another, Secretary Guingona stated:
In the case at bar, complainant has not shown that anyone was actually deceived by
respondent. Respondents product, which bears the trademark LIVEs, has an
entirely different spelling and meaningwith the trademark owned by complainant which is
LEVIs. Complainants trademark comes from a Jewish name while that of respondent is
merely an adjective word. Both, when read and pronounced, would resonate different
sounds. While respondents "LIVEs" trademark may appear similar, such could not have
been intended by the respondent to deceive since he had the same registered with the
appropriate government agencies. Granting arguendo, that respondents trademark or
products possessed similar characteristics with the trademark and products of

complainant, on that score alone, without evidence or proof that such was a device of
respondent to deceive the public to the damage of complainant no unfair competition is
committed.29
On February 13, 1998, petitioner filed a motion for reconsideration of Secretary Guingonas
resolution, alleging, among others, that only a likelihood of confusion is required to sustain a
charge of unfair competition. It also submitted the results of a consumer survey30 involving a
comparison of petitioners and respondents products.
On June 5, 1998, Justice Secretary Silvestre Bello III, Guingonas successor, granted
petitioners motion and directed the filing of an information against respondent.31
WHEREFORE, our resolution dated 9 January 1998 is hereby reversed and set aside.
You are directed to file an information for unfair competition under Article 189 of the
Revised Penal Code, as amended, against respondent Tony Lim. Report the action
taken thereon within ten (10) days from receipt hereof.32
Secretary Bello reasoned that under Article 189 of the Revised Penal Code, as amended, exact
similarity of the competing products is not required. However, Justice Guingonas resolution
incorrectly dwelt on the specific differences in the details of the products.33 Secretary Bellos
own factual findings revealed:
x x x [I]t is not difficult to discern that respondent gave his products the general
appearance as that of the product of the complainant. This was established by the
respondents use of the complainants arcuate backpocket design trademark; the 105
mark which apparently is a spin-off of the 501 mark of the complainant; the patch which
was clearly patterned after that of the complainants two horse patch design trademark;
the red tab on the right backpocket; the wordings which were crafted to look similar with
the Levis trademark of the complainant; and even the packaging. In appropriating
himself the general appearance of the product of the complainant, the respondent clearly
intended to deceive the buying public. Verily, any person who shall employ deception or
any other means contrary to good faith by which he shall pass of the goods
manufactured by him or in which he deals, or his business, or services for those of the
one having established good will shall guilty of unfair competition.
Respondents registration of his trademark can not afford him any remedy. Unfair competition
may still be prosecuted despite such registration.34 (Citation omitted)
Respondent then filed his own motion for reconsideration of the Bello resolution. On May 7,
1999, new DOJ Secretary Serafin Cuevas granted respondents motion and ordered the
dismissal of the charges against him.35
CA Disposition

Dissatisfied with the DOJ rulings, petitioner sought recourse with the CA via a petition for review
under Rule 43 of the 1997 Rules of Civil Procedure. On October 17, 2003, the appellate court
affirmed the dismissal of the unfair competition complaint.
WHEREFORE, premises considered, the petition for review is DENIED and is
accordingly DISMISSED for lack of merit.
SO ORDERED.36
The CA pointed out that to determine the likelihood of confusion, mistake or deception, all
relevant factors and circumstances should be taken into consideration, such as the
circumstances under which the goods are sold, the class of purchasers, and the actual
occurrence or absence of confusion.37
Thus, the existence of some similarities between LIVES jeans and LEVIS garments would not
ipso facto equate to fraudulent intent on the part of respondent. The CA noted that respondent
used affirmative and precautionary distinguishing features in his products for differentiation. The
appellate court considered the spelling and pronunciation of the marks; the difference in the
designs of the back pockets; the dissimilarity between the carton tickets; and the pricing and
sale of petitioners products in upscale exclusive specialty shops. The CA also disregarded the
theory of post-sale confusion propounded by petitioner, relying instead on the view that the
probability of deception must be determined at the point of sale.38
Issues
Petitioner submits that the CA committed the following errors:
I.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT ACTUAL
CONFUSION IS NECESSARYTO SUSTAIN A CHARGE OF UNFAIR COMPETITION,
AND THAT THERE MUST BE DIRECT EVIDENCE OR PROOF OF INTENT TO
DECEIVE THE PUBLIC.
II.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT RESPONDENTS
LIVES JEANS DO NOT UNFAIRLY COMPETE WITH LEVIS JEANS AND/OR THAT
THERE IS NO POSSIBILITY THAT THE FORMER WILL BE CONFUSED FOR THE
LATTER, CONSIDERING THAT RESPONDENTS LIVES JEANS BLATANTLY COPY
OR COLORABLY IMITATE NO LESS THAN SIX (6) TRADEMARKS OF LEVIS JEANS.
III.

THE COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE EVIDENCE

ON RECORD, CONSISTING OF THE SCIENTIFICALLY CONDUCTED MARKET
SURVEY AND THE AFFIDAVIT OF THE EXPERT WITNESS ON THE RESULTS
THEREOF, WHICH SHOW THAT RESPONDENTS LIVES JEANS ARE, IN FACT,
BEING CONFUSED FOR LEVIS JEANS.
IV.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE ISSUE OF
CONFUSION SHOULD ONLY BE DETERMINED AT THE POINT OF SALE.
V.
THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO DIRECT THE
SECRETARY OF JUSTICE TO CAUSE THE FILING OF THE APPROPRIATE
INFORMATION IN COURT AGAINST THE RESPONDENT.39(Underscoring supplied)
Our Ruling
In essence, petitioner asks this Court to determine if probable cause exists to charge
respondent with the crime of unfair competition under Article 189(1) of the Revised Penal Code,
prior to its repeal by Section 239 of RA No. 8293.
However, that is a factual issue40 the resolution of which is improper in a Rule 45 petition.41 The
only legal issue left for the Court to determine is whether the issue of confusion should be
determined only at the point of sale.
Nonetheless, there is sufficient reason for this Court to dismiss this petition merely by looking at
the procedural avenue petitioner used to have the DOJ resolutions reviewed by the CA.
Petitioner filed with the CA a petition for review under Rule 43 of the 1997 Rules of Civil
Procedure.42 Rule 43 governs all appeals from [the Court of Tax Appeals and] quasi-judicial
bodies to the CA. Its Section 1 provides:
Section 1. Scope. This Rule shall apply to appeals from [judgments or final orders of
the Court of Tax Appeals and from] awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Inventions Board, Insurance

Commission, Philippine Atomic Energy Commission, Board of Investments, Construction

Industry Arbitration Commission, and voluntary arbitrators authorized by law.43
Clearly, the DOJ is not one of the agencies enumerated in Section 1 of Rule 43 whose awards,
judgments, final orders, or resolutions may be appealed to the CA.
The Court has consistently ruled that the filing with the CA of a petition for review under
Rule 43 to question the Justice Secretarys resolution regarding the determination of probable
cause is an improper remedy.44
Under the 1993 Revised Rules on Appeals from Resolutions in Preliminary Investigations or
Reinvestigations,45the resolution of the investigating prosecutor is subject to appeal to the
Justice Secretary46 who, under the Revised Administrative Code, exercises the power of control
and supervision over said Investigating Prosecutor; and who may affirm, nullify, reverse, or
modify the ruling of such prosecutor.47 If the appeal is dismissed, and after the subsequent
motion for reconsideration is resolved, a party has no more appeal or other remedy available in
the ordinary course of law.48 Thus, the Resolution of the Justice Secretary affirming, modifying
or reversing the resolution of the Investigating Prosecutor is final.49
There being no more appeal or other remedy available in the ordinary course of law, the remedy
of the aggrieved party is to file a petition for certiorari under Rule 65. Thus, while the CA may
review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under
Rule 65 of the 1997 Rules of Civil Procedure, solelyon the ground that the Secretary of Justice
committed grave abuse of discretion amounting to excess or lack of jurisdiction.50
Verily, when respondent filed a petition for review under Rule 43 instead of a petition
for certiorari under Rule 65, the CA should have dismissed it outright. However, the appellate
court chose to determine if DOJ Secretaries Guingona and Cuevas correctly determined the
absence of probable cause.
Now, even if We brush aside technicalities and consider the petition for review filed with the CA
as one under Rule 65, the petition must fail just the same.
While the resolution of the Justice Secretary may be reviewed by the Court, it is not
empowered to substitute its judgment for that of the executive branch when there is no
grave abuse of discretion.51
Courts are without power to directly decide matters over which full discretionary authority has
been delegated to the legislative or executive branch of the government.52 The determination of
probable cause is one such matter because that authority has been given to the executive
branch, through the DOJ.53
It bears stressing that the main function of a government prosecutor is to determine the
existence of probable cause and to file the corresponding information should he find it to be
so. 54 Thus, the decision whether or not to dismiss the criminal complaint against respondent is

necessarily dependent on the sound discretion of the investigating prosecutor and ultimately,
that of the Secretary of Justice.55
A prosecutor, 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 prop up its averments, or that the
evidence at hand points to a different conclusion. This is not to discount the possibility of the
commission of abuses on the part of the prosecutor. But this Court must recognize that a
prosecutor should not be unduly compelled to work against his conviction. Although the power
and prerogative of the prosecutor to determine whether or not the evidence at hand is sufficient
to form a reasonable belief that a person committed an offense is not absolute but subject to
judicial review, it would be embarrassing for him 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.56
In finding that respondents goods were not clothed with an appearance which is likely to
deceive the ordinary purchaser exercising ordinary care, the investigating prosecutor exercised
the discretion lodged in him by law. He found that:
First, the LIVES mark of the respondents goods is spelled and pronounced differently
from the LEVIS mark of the complainant.
Second, the backpocket design allegedly copied by the respondent from the registered
arcuate design of the complainant, appears to be different in view of the longer curved
arms that stretch deep downward to a point of convergence where the stitches form a
rectangle. The arcuate design for complainant LEVIs jeans form a diamond instead. And
assuming arguendo that there is similarity in the design of backpockets between the
respondents goods and that of the complainant, this alone does not establish that
respondents jeans were intended to copy the complainants goods and pass them off as
the latters products as this design is simple and may not be said to be strikingly distinct
absent the other LEVIS trademark such as the prints on the button, rivets, tags and the
like. x x x Further, the presence of accessories bearing Levis trademark was not
established as there were no such accessories seized from the respondent and instead
genuine LIVES hangtags, button and patches were confiscated during the search of
latters premises.
Second, the design of the patches attached to the backpockets of the respondents
goods depicts three men on either side of a pair of jeans attempting to pull apart said
jeans, while the goods manufactured by complainant with patches also attached at the
right backpockets depicts two horses being whipped by two men in an attempt to tear
apart a pair of jeans. It is very clear therefore that the design of the backpocket patches
by the respondent is different from that of the complainant, in the former the men were
trying to pull apart the pants while in the latter horses are the ones doing the job.
Obviously, there is a great difference between a man and a horse and this will naturally
not escape the eyes of an ordinary purchaser.

Third, the manner by which Levis jeans are packed and sold with carton tickets attached
to the products cannot be appropriated solely by complainant to the exclusion of all other
manufacturers of same class. It frequently happens that goods of a particular class are
labeled by all manufacturer[s] in a common manner. In cases of that sort, no
manufacturer may appropriate for himself the method of labeling or packaging [of] his
merchandise and then enjoin other merchants from using it. x x x.
Fourth, evidence shows that there is a copyright registration issued by the National
Library over the backpocket design of the respondent. And this copyright registration
gives the respondent the right to use the same in his goods x x x.57
The determination of probable cause is part of the discretion granted to the investigating
prosecutor and ultimately, the Secretary of Justice. Courts are not empowered to substitute their
own judgment for that of the executive branch.58
The courts duty in an appropriate case is confined to a determination of whether the assailed
executive or judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion amounting to want of jurisdiction.59 For grave abuse
of discretion to prosper as a ground for certiorari, it must be demonstrated that the lower court
or tribunal has exercised its power in an arbitrary and despotic manner, by reason of passion or
personal hostility, and it must be patent and gross as would amount to an evasion or to a
unilateral refusal to perform the duty enjoined or to act in contemplation of law.60
In the case at bar, no grave abuse of discretion on the part of the DOJ was shown. Petitioner
merely harps on the error committed by the DOJ and the CA in arriving at their factual finding
that there is no confusing similarity between petitioners and respondents products. While it is
possible that the investigating prosecutor and Secretaries Guingona and
Cuevas erroneously exercised their discretion when they found that unfair competition was not
committed, this by itself does not render their acts amenable to correction and annulment by the
extraordinary remedy of certiorari. There must be a showing of grave abuse of discretion
amounting to lack or excess of jurisdiction.61
We are disinclined to find that grave of abuse of discretion was committed when records
show that the finding of no probable cause is supported by the evidence, law, and
jurisprudence.
Generally, unfair competition consists in employing deception or any other means contrary to
good faith by which any person shall pass off the goods manufactured by him or in which he
deals, or his business, or services for those of the one having established goodwill, or
committing any acts calculated to produce such result.62
The elements of unfair competition under Article 189(1)63 of the Revised Penal Code are:
(a) That the offender gives his goods the general appearance of the goods of another
manufacturer or dealer;

(b) That the general appearance is shown in the (1) goods themselves, or in the (2)
wrapping of their packages, or in the (3) device or words therein, or in (4) any other
feature of their appearance;
(c) That the offender offers to sell or sells those goods or gives other persons a chance
or opportunity to do the same with a like purpose; and
(d) That there is actual intent to deceive the public or defraud a competitor.64
All these elements must be proven.65 In finding that probable cause for unfair competition does
not exist, the investigating prosecutor and Secretaries Guingona and Cuevas arrived at the
same conclusion that there is insufficient evidence to prove all the elements of the crime that
would allow them to secure a conviction.
Secretary Guingona discounted the element of actual intent to deceive by taking into
consideration the differences in spelling, meaning, and phonetics between "LIVES" and
"LEVIS," as well as the fact that respondent had registered his own mark.66 While it is true that
there may be unfair competition even if the competing mark is registered in the Intellectual
Property Office, it is equally true that the same may show prima facie good faith.67Indeed,
registration does not negate unfair competition where the goods are packed or offered for sale
and passed off as those of complainant.68 However, the marks registration, coupled with the
stark differences between the competing marks, negate the existence of actual intent to
deceive, in this particular case.
For his part, Justice Cuevas failed to find the possibility of confusion and of intent to deceive the
public, relying onEmerald Garment Manufacturing Corporation v. Court of Appeals.69 In Emerald,
the Court explained that since maong pants or jeans are not inexpensive, the casual buyer is
more cautious and discerning and would prefer to mull over his purchase, making confusion and
deception less likely.
We cannot subscribe to petitioners stance that Emerald Garment cannot apply because there
was only one point of comparison, i.e., "LEE" as it appears in Emerald Garments "STYLISTIC
MR. LEE." Emerald Garment is instructive in explaining the attitude of the buyer when it comes
to products that are not inexpensive, such as jeans. In fact, the Emerald Garment rationale is
supported by Del Monte Corporation v. Court of Appeals,70 where the Court explained that the
attitude of the purchaser is determined by the cost of the goods. There is no reason not to apply
the rationale in those cases here even if only by analogy.
The rule laid down in Emerald Garment and Del Monte is consistent with Asia Brewery, Inc. v.
Court of Appeals,71where the Court held that in resolving cases of infringement and unfair
competition, the courts should take into consideration several factors which would affect its
conclusion, to wit: the age, training and education of the usual purchaser, the nature and cost of
the article, whether the article is bought for immediate consumption and also the conditions
under which it is usually purchased.72

Petitioner argues that the element of intent to deceive may be inferred from the similarity of the
goods or their appearance.73 The argument is specious on two fronts. First, where the similarity
in the appearance of the goods as packed and offered for sale is so striking, intent to deceive
may be inferred.74 However, as found by the investigating prosecutor and the DOJ Secretaries,
striking similarity between the competing goods is not present.
Second, the confusing similarity of the goods was precisely in issue during the preliminary
investigation. As such, the element of intent to deceive could not arise without the investigating
prosecutors or the DOJ Secretarys finding that such confusing similarity exists. Since
confusing similarity was not found, the element of fraud or deception could not be inferred.
We cannot sustain Secretary Bellos opinion that to establish probable cause, "it is enough that
the respondent gave to his product the general appearance of the product"75 of petitioner. It
bears stressing that that is only one element of unfair competition. All others must be shown to
exist. More importantly, the likelihood of confusion exists not only if there is confusing similarity.
It should also be likely to cause confusion or mistake or deceive purchasers.76 Thus, the CA
correctly ruled that the mere fact that some resemblance can be pointed out between the marks
used does not in itself prove unfair competition.77 To reiterate, the resemblance must be such as
is likely to deceive the ordinary purchaser exercising ordinary care.78
The consumer survey alone does not equate to actual confusion. We note that the survey was
made by showing the interviewees actual samples of petitioners and respondents respective
products, approximately five feetaway from them. From that distance, they were asked to
identify the jeans brand and state the reasons for thinking so.79 This method discounted the
possibility that the ordinary intelligent buyer would be able to closely scrutinize, and even fit, the
jeans to determine if they were "LEVIS" or not. It also ignored that a consumer would consider
the price of the competing goods when choosing a brand of jeans. It is undisputed that "LIVES"
jeans are priced much lower than "LEVIS."
The Courts observations in Emerald Garment are illuminating on this score:
First, the products involved in the case at bar are, in the main, various kinds of jeans. x x
x Maong pants or jeans are not inexpensive. Accordingly, the casual buyer is
predisposed to be more cautious and discriminating in and would prefer to mull over his
purchase. Confusion and deception, then, is less likely. InDel Monte Corporation v. Court
of Appeals, we noted that:
Among these, what essentially determines the attitudes of the purchaser,
specifically his inclination to be cautious, is the cost of the goods. To be sure, a
person who buys a box of candies will not exercise as much care as one who
buys an expensive watch. As a general rule, an ordinary buyer does not exercise
as much prudence in buying an article for which he pays a few centavos as he
does in purchasing a more valuable thing. Expensive and valuable items are
normally bought only after deliberate, comparative and analytical
investigation. But mass products, low priced articles in wide use, and matters of

everyday purchase requiring frequent replacement are bought by the casual

consumer without great care.80 (Emphasis supplied)
We find no reason to go beyond the point of sale to determine if there is probable cause for
unfair competition. The CA observations along this line are worth restating:
We also find no basis to give weight to petitioners contention that the "post sale
confusion" that might be triggered by the perceived similarities between the two products
must be considered in the action for unfair competition against respondent.
No inflexible rule can be laid down as to what will constitute unfair competition. Each
case is, in the measure, a law unto itself. Unfair competition is always a question of fact.
The question to be determined in every case is whether or not, as a matter of fact, the
name or mark used by the defendant has previously come to indicate and designate
plaintiffs goods, or, to state it in another way, whether defendant, as a matter of fact, is,
by his conduct, passing off defendants goods as plaintiffs goods or his business as
plaintiffs business. The universal test question is whether the public is likely to be
deceived.
In the case before us, we are of the view that the probability of deception must be tested
at the point of sale since it is at this point that the ordinary purchaser mulls upon the
product and is likely to buy the same under the belief that he is buying another. The test
of fraudulent simulation is to be found in the likelihood of deception, or the possibility of
deception of some persons in some measure acquainted with an established design and
desirous of purchasing the commodity with which that design has been associated.81
In sum, absent a grave abuse of discretion on the part of the executive branch tasked with the
determination of probable cause during preliminary investigation, We cannot nullify acts done in
the exercise of the executive officers discretion. Otherwise, We shall violate the principle that
the purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from
the trouble, expense and anxiety of a public trial, and also to protect the State from useless and
expensive trials.82
WHEREFORE, the petition is DENIED and the appealed Decision of the Court of
Appeals AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 113216 September 5, 1997

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

PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of lack of probable
cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to
make an independent assessment of the merits of such motion. Having acquired jurisdiction
over the case, the trial court is not bound by such resolution but is required to evaluate it before
proceeding further with the trial. While the secretary's ruling is persuasive, it is not binding on
courts. A trial court, however, commits reversible error or even grave abuse of discretion if it
refuses/neglects to evaluate such recommendation and simply insists on proceeding with the
trial on the mere pretext of having already acquired jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review on certiorari of the
Decision 1 of the Court of Appeals, 2 promulgated on September 14, 1993 in CA-G.R SP No.
30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying the
prosecution's withdrawal of a criminal information against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr.
Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutor's Office, docketed
as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint.
Finding "sufficient legal and factual basis," the Quezon City Prosecutor's Office filed on July 6,
1992 an Information for libel against petitioner with the Regional Trial Court of Quezon City,
Branch 104. 3 The Information filed by Assistant City Prosecutor Augustine A. Vestil reads: 4
That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
Philippines, the said accused, acting with malice, did, then and there, wilfully,
unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral,
Director of Philippine Heart Center, East Avenue, this city, and furnished the
same to other officers of the said hospital, said letter containing slanderous and

defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to
wit:
27 June 1991
Dr. Esperanza I. Cabral
Director
Subject: Return of all professional
fees due Dr.
Rhodora M. Ledesma, Nuclear
Medicine
Specialist/Consultant, Philippine
Heart
Center, from January 31, 1989 to
January 31,
1991.
Respondents: Dr. Juan F. Torres, Jr.,
Chief, Nuclear
Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a
consultant in Nuclear Medicine, this Center, since January 31,
1989 until my resignation effective January 31, 1991, amounting to
at least P100,000.00 for the year 1990 alone. Records in the
Nuclear Medicine Section will show that from January 1989 to
January 1991, a total of 2,308 patients were seen. Of these, I had
officially supervised, processed, and interpreted approximately a
total of 1,551 cases as against approximately 684 and 73 cases
done by Dr. Monzon and Dr. Torres respectively.
Until my resignation I had received a monthly share of
professional fees averaging P1,116.90/month supposedly
representing 20% of the total monthly professional fees. The rest
were divided equally between Dr. Monzon and Dr. Torres. There
was never any agreement between us three consultants that this
should be the arrangement and I am certain that this was not with
your approval. The burden of unfairness would have been lesser if
there was an equal distribution of labor and the schedule of duties

were strictly followed. As it was, the schedule of duties submitted

monthly to the office of the Asst. Director for Medical Services was
simply a dummy to comply with administrative requirements rather
than a guideline for strict compliance. Both consultants have
complete daily time records even if they did not come regularly. Dr.
Torres came for an hour every week, Dr. Monzon came
sporadically during the week while I was left with everything from
training the residents and supervising the Techs to processing and
interpreting the results on a regular basis. I had a part time
appointment just like Dr. Monzon and Dr. Torres.
In the interest of fairness and to set a precedent for the protection
of future PHC Nuclear Medicine Alumni I am calling your attention
to the unfair and inhuman conditions I went through as a
Consultant in that Section. I trust that your sense of
professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the
distribution of professional fees in this Section. At this point, let me
stress that since professional fees vary according to the type of
procedure done and since there was no equity of labor between
us I am not settling for an equal percentage share. I demand that I
be indemnified of all professional fees due me on a case to case
basis.
Let me make clear my intention of pursuing this matter legally
should there be no favorable action in my behalf. Let me state at
this point 6 that the actions of Dr. Torres and Dr. Monzon are both
unprofessional and unbecoming and are clearly violating the code
of ethics of the medical profession and the Philippine Civil Service
Rules and Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very
well knew, the same are entirely false and untrue but were publicly made for no
other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule,
thereby casting dishonor, discredit and contempt upon the person of the said
offended party, to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner
before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City
prosecutor to move for deferment of further proceedings and to elevate the entire records of the

case. 5 Accordingly, a "Motion to Defer, Arraignment" dated September 7, 1992 was filed by
Prosecutor Tirso M. Gavero before the court a quo. 6 On September 9, 1992, the trial court
granted the motion and deferred petitioner's arraignment until the final termination of the petition
for review. 7
Without the consent or approval of the trial prosecutor, private complainant, through counsel,
filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for
Arraignment/Trial. 8
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September
9, 1992 and scheduling petitioner's arraignment on January 18, 1993 at two o'clock in the
afternoon. 9
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the
Quezon City investigating prosecutor. Pertinent portions of Drilon's ruling read: 10
From the circumstances obtaining, the subject letter was written to bring to the
attention of the Director of the Philippine Heart Center for Asia and other
responsible authorities the unjust and unfair treatment that Dr. Ledesma was
getting from complainants. Since complainants and respondent are government
employees, and the subject letter is a complaint to higher authorities of the PHCA
on a subject matter in which respondent has an interest and in reference to which
she has a duty to question the same is definitely privileged (US vs. Bustos, 37
Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court,
citing Santiago vs. Calvo, 48 Phil. 922, ruled that "A communication made in
good faith upon any subject matter in which the party making the communication
has an interest or concerning which he has a duty is privileged. . . although it
contains incriminatory or derogatory matter which, without the privilege, would be
libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct
evidence of respondent's righteous disposition of following the rule of law and is
a clear indication that her purpose was to seek relief from the proper higher
authority who is the Director of PHCA.
The same interpretation should be accorded the civil and administrative
complaints which respondent filed against complainants. They are mere
manifestations of her earnest desire to pursue proper relief for the alleged
injustice she got from complainants. If she was motivated by malice and ill-will in
sending the subject communication to the Director of the PHCA, she would not
have sent the second letter and filed the administrative and civil cases against
complainants.
Moreover, it is unbelievable that it took complainants one year to realize that the
questioned letter subjected them to public and malicious imputation of a vice or

omission. It is beyond the ordinary course of human conduct for complainants to

start feeling the effects of the alleged libelous letter that of experiencing
sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched
reputation one year after they read the communication in question.
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the
instant case is unfounded. In the first place, the instant cases are not being
reinvestigated. It is the resolutions of the investigating prosecutor that are under
review. Further, the record shows that the court has issued an order suspending
the proceedings pending the resolutions of the petitions for review by this Office.
In the issuance of its order, the court recognizes that the Secretary of Justice has
the power and authority to review the resolutions of prosecutors who are under
his control and supervision.
In view of the foregoing, the appealed resolutions are hereby reversed. You are
directed to withdraw the Informations which you filed in Court. Inform this Office
of the action taken within ten (10) days from receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion
to Withdraw Information dated February 17, 1993, 11 attaching thereto the resolution of
Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as
follows: 12
The motion of the trial prosecutor to withdraw the information in the aboveentitled case is denied. Instead, the trial prosecutor of this court is hereby
directed to prosecute the case following the guidelines and doctrine laid down by
the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462.
Petitioner's motion for reconsideration 13 was denied by the trial judge in the Order dated March
5, 1993, as follows: 14
Finding no cogent reason to justify the reconsideration of the ruling of this Court
dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993
filed by the accused through counsel is hereby denied.
Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a
Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for proper
determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129. 15
Respondent Court dismissed the petition "for lack of merit," holding that it had no jurisdiction to
overturn the doctrine laid down in Crespo vs. Mogul once a complaint or information has
been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the
accused, rests on the sound discretion of the trial court.16
Hence, this recourse to this Court.

The Issues
For unexplained reasons, petitioner failed to make an assignment of errors against the appellate
court. Her counsel merely repeated the alleged errors of the trial court: 17
I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge
Asuncion relied solely on the "Crespo vs. Mogul" (151 SCRA 462) decision. It is
respectfully submitted that said case is not applicable because:
1. It infringes on the constitutional separation of powers between the executive
and judicial branches of the government;
2. It constitutes or it may lead to misuse or misapplication of "judicial power" as
defined in the Constitution;
3. It goes against the constitutional proscription that rules of procedure should
not diminish substantive rights;
4. It goes against the principle of non-delegation of powers;
5. It sets aside or disregards substantive and procedural rules;
6. It deprives a person of his constitutional right to procedural due process;
7. Its application may constitute or lead to denial of equal protection of laws;
8. It deprives the secretary of justice or the president of the power to control or
review the acts of a subordinate official;
9. It will lead to, encourage, abet or promote abuse or even corruption among the
ranks of investigating fiscals;
10. It does not subserve the purposes of a preliminary investigation because
(10.a) It subjects a person to the burdens of an unnecessary trial, specially in
cases where the investigating fiscal recommends no bail for the accused;
(10.b) It subjects the government, both the executive and the judiciary, to
unnecessary time and expenses attendant to an unnecessary trial;
(10.c) It contributes to the clogging of judicial dockets; and
11. It has no statutory or procedural basis or precedent.
II. On the assumption that "Crespo vs. Mogul" is applicable, it is submitted that

1. Respondent Judge Asuncion committed grave abuse of discretion, amounting

to lack of jurisdiction, when he denied the Motion to Withdraw Information since
he had already deferred to, if not recognized, the authority of the Secretary of
Justice; and
2. The facts in "Crespo vs. Mogul" are different from the instant case. Hence,
respondent Judge Asuncion committed grave abuse of discretion, amounting to
lack of jurisdiction, when he relied solely on said case in denying the Motion to
Withdraw Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in
affirming the trial court's denial of the prosecution's Motion to Withdraw Information?
The Court's Ruling
The petition is impressed with merit. We answer the above question in the affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a procedural
matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of
Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided:
Sec. 2. Contents of petition. The petition shall contain a concise statement of .
. . the assignment of errors made in the court below . . . .
A petition for review on certiorari under Rule 45 requires a concise statement of the errors
committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the
petition could have been dismissed by this Court motu proprio, considering that under Section 4
of the same Rule, "review is not a matter of right but of sound discretion."
We take this occasion to stress the need for precision and clarity in the assignment of errors.
Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusion
perpetua or life imprisonment is imposed and where the whole case is opened for review. Under
Rule 45, only the issues raised therein by the petitioner will be passed upon by the Court, such
that an erroneous specification of the issues may cause the dismissal of the petition. We
stressed this in Circular No. 2-90, entitled "Guidelines to be Observed in Appeals to the Court of
Appeals and to the Supreme Court," as follows:
4. Erroneous Appeals. . . . .
e) Duty of counsel. It is therefore incumbent upon every attorney who would
seek review of a judgment or order promulgated against his client to make sure
of the nature of the errors he proposes to assign, whether these be of fact or of
law; then upon such basis to ascertain carefully which Court has appellate

jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed
by law, ever aware that any error or imprecision in compliance may well be fatal
to his client's cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court noting the importance of the substantial matters raised
decided to overlook petitioner's lapse and granted due course to the petition per Resolution
dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment
of errors of the proper lower court may be denied due course motu proprio by this Court.
Determination of Probable Cause
Is an Executive Function
The determination of probable cause during a preliminary investigation is judicially recognized
as an executive function and is made by the prosecutor. The primary objective of a preliminary
investigation is to free a respondent from the inconvenience, expense, ignominy and stress of
defending himself/herself in the course of a formal trial, until the reasonable probability of his or
her guilt has been passed upon in a more or less summary proceeding by a competent officer
designated by law for that purpose. Secondarily, such summary proceeding also protects the
state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in
holding trials arising from false, frivolous or groundless charges. 18
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties'
evidence is not required, but only such as may engender a well-grounded belief that an offense
has been committed and that the accused is probably guilty thereof. 19 By reason of the
abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is
not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the
determination of probable cause for the issuance of a warrant of arrest or a search warrant from
a preliminary investigation proper, in this wise: 20
. . . 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. . . . The determination of probable cause for the warrant
of arrest is made by the Judge. The preliminary investigation proper
whether . . . there is reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether . . . he should be subjected to the
expense, rigors and embarrassment of trial is the function of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether
it is an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for

the issuance of a warrant of arrest. The first kind of preliminary investigation is

executive in nature. It is part of the prosecutor's job. The second kind of
preliminary investigation which is more properly called preliminary examination is
judicial in nature and is lodged with the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice
Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the
existence of probable cause properly pertains to the public prosecutor in the "established
scheme of things," and that the proceedings therein are "essentially preliminary, prefatory and
cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the
persons charged with a felony or a crime." 21
In Crespo vs. Mogul, 22 the Court emphasized the cardinal principle that the public prosecutor
controls and directs the prosecution of criminal offenses thus:
It is a cardinal principle that all criminal actions either commenced by complaint
or by information shall be prosecuted under the direction and control of the fiscal.
The institution of a criminal action depends upon the sound discretion of the
fiscal. He may or may not file the complaint or information, follow or not follow
that presented by the offended party, according to whether the evidence in his
opinion, is sufficient or not to establish the guilt of the accused beyond
reasonable doubt. The reason for placing the criminal prosecution under the
direction and control of the fiscal is to prevent malicious or unfounded
prosecution by private persons. It cannot be controlled by the complainant.
Prosecuting officers under the power vested in them by law, not only have the
authority but also the duty of prosecuting persons who, according to the evidence
received from the complainant, are shown to be guilty of a crime committed
within the jurisdiction of their office. They have equally the legal duty not to
prosecute when after an investigation they become convinced that the evidence
adduced is not sufficient to establish a prima facie case.
In the same case, the Court added that where there is a clash of views between a judge who did
not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should
normally prevail: 23
. . . . 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.
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. Thus, a fiscal who asks for

the dismissal of the case for insufficiency of evidence has authority to do so, and
Courts that grant the same commit no error. The fiscal may re-investigate a case
and subsequently move for the dismissal should the re-investigation show either
that the defendant is innocent or that his guilt may not be established beyond
reasonable doubt. In a clash of views between the judge who did not investigate
and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the fiscal's should normally prevail. . . . . .
Appeal as an Exercise of the Justice
Secretary's Power of Control Over Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who,
under the Revised Administrative Code, exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code
gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and
the Provincial and City Prosecution Offices. The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to
act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts;
review, approve, reverse or modify acts and decisions of subordinate officials or
units; . . . . .
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act
4007, which read:
Sec. 3. . . . .
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior
State Prosecutors, and the State Prosecutors shall . . . perform such other duties
as may be assigned to them by the Secretary of Justice in the interest of public
service.
xxx xxx xxx
Sec. 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a
chief of bureau, office, division or service, the same shall be understood as also
conferred upon the proper Department Head who shall have authority to act
directly in pursuance thereof, or to review, modify, or revoke any decision or
action of said chief of bureau, office, division or service.

"Supervision" and "control" of a department head over his subordinates have been defined in
administrative law as follows: 24
In administrative law supervision means overseeing or the power or authority of
an officer to see that subordinate officers perform their duties. If the latter fail or
neglect to fulfill them, the former may take such action or step as prescribed by
law to make them perform such duties. Control, on the other hand, means the
power of an officer to alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that
mistakes, abuses or negligence committed in the initial steps of an administrative activity or by
an administrative agency should be corrected by higher administrative authorities, and not
directly by courts. As a rule, only after administrative remedies are exhausted may judicial
recourse be allowed.
Appeal to the Secretary of Justice Is Not
Foreclosed by the Ruling in Crespo
In Marcelo vs. Court of Appeals, 25 the Court clarified that Crespo 26 did not foreclose the power
or authority of the secretary of justice to review resolutions of his subordinates in criminal cases.
The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the
preliminary investigation is subject to the approval of the provincial or city fiscal or chief state
prosecutor. Thereafter, it may be appealed to the secretary of justice.
The justice secretary's power of review may still be availed of despite the filing of an information
in court. In his discretion, the secretary may affirm, modify or reverse resolutions of his
subordinates pursuant to Republic Act No. 5180, as amended, 27 specifically in Section 1 (d):
(d) . . . Provided, finally, That where the resolution of the Provincial or City Fiscal
or the Chief State Prosecutor is, upon review, reversed by the Secretary of
Justice, the latter may, where he finds that no prima facie case exists, authorize
and direct the investigating fiscal concerned or any other fiscal or state
prosecutor to cause or move for the dismissal of the case, or, where he finds
a prima faciecase, to cause the filing of an information in court against the
respondent, based on the same sworn statements or evidence submitted without
the necessity of conducting another preliminary investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990
governing appeals in preliminary investigation. Appeals under Section 2 are limited to
resolutions dismissing a criminal complaint. However, Section 4 provides an exception: appeals
from resolutions finding probable cause upon a showing of manifest error or grave abuse of
discretion are allowed, provided the accused has not been arraigned. In the present case,

petitioner's appeal to the secretary of justice was given due course on August 26, 1992 pursuant
to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order. No. 223; however, the
scope of appealable cases remained unchanged:
Sec. 1. What May Be Appealed. Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice
except as otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty
prescribed for the offense charged does not exceed prision correccional,
regardless of the imposable fine, shall be made to the Regional State
Prosecutors who shall resolve the appeals with finality, pursuant to Department
Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated
February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated
February 2, 1993. Such appeals shall also be governed by these rules.
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor finding probable cause except upon showing of manifest error or
grave abuse of discretion. Notwithstanding the showing of manifest error or grave
abuse of discretion, no appeal shall be entertained where the appellant had
already been arraigned. If the appellant (is) arraigned during the pendency of the
appeal, . . . appeal shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of review of the
secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court:
Sec. 4. Duty of investigating fiscal. . . . .
xxx xxx xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution
of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.

This appeal rests upon the sound discretion of the secretary of justice arising from his power of
supervision and control over the prosecuting arm of the government, not on a substantial right
on the part of the accused as claimed by petitioner.
Appeal Did Not Divest the
Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an information has been
filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is
resolved. Such deferment or suspension, however, does not signify that the trial court is ipso
facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial
court, is not lost despite a resolution by the secretary of justice to withdraw the information or to
dismiss the case.
Judicial Review of the Resolution
of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual
controversies involving rights which are legally demandable and enforceable. Such power
includes the determination of whether there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. 28 Under this definition, a court is without power to directly decide matters over
which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is not empowered to substitute its judgment for that of Congress or of the
President. It may, however, look into the question of whether such exercise has been made in
grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or a
derogation of their functions. In the words of Justice Laurel in Angara vs. Elertoral
Commission: 29
. . . [W]hen the judiciary mediates to allocate constitutional boundaries, it does
not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument sources and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of the judicial review under the
Constitution. . . . .
It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to
review the decisions of the government prosecutors under him. In Crespo, the secretary was
merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of
the Rules of Court, which recognizes such power, does not, however, allow the trial court to
automatically dismiss the case or grant the withdrawal of the information upon the resolution of

the secretary of justice. This is precisely the import of Crespo, Marcelo,Martinez vs. Court of
Appeals 30 and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial
court to make its own evaluation of the merits of the case, because granting the motion to
dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself.
The Marcelo and Martinez
Cases Are Consistent
In Marcelo vs. Court of Appeals, 31 this Court ruled that, although it is more prudent to wait for a
final resolution of a motion for review or reinvestigation from the secretary of justice before
acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless
should make its own study and evaluation of said motion and not rely merely on the awaited
action of the secretary. The trial court has the option to grant or deny the motion to dismiss the
case filed by the fiscal, whether before or after the arraignment of the accused, and whether
after a reinvestigation or upon instructions of the secretary who reviewed the records of the
investigation; provided that such grant or denial is made from its own assessment and
evaluation of the merits of the motion.
In Martinez vs. Court of Appeals, 32 this Court overruled the grant of the motion to dismiss filed
by the prosecuting fiscal upon the recommendation of the secretary of justice because, such
grant was based upon considerations other than the judge's own assessment of the matter.
Relying solely on the conclusion of the prosecution to the effect that there was no sufficient
evidence against the accused to sustain the allegation in the information, the trial judge did not
perform his function of making an independent evaluation or assessment of the merits of the
case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of
Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or
information is filed in court, any disposition of the case such as its dismissal or its continuation
rests on the sound discretion of the court. Trial judges are thus required to make their own
assessment of whether the secretary of justice committed grave abuse of discretion in granting
or denying the appeal, separately and independently of the prosecution's or the secretary's
evaluation that such evidence is insufficient or that no probable cause to hold the accused for
trial exists. They should embody such assessment in their written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo,
the dismissal of the criminal action upon the favorable recommendation of the Review
Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private
complainant's appeal to the secretary of justice. In effect, the secretary's opinion was totally
disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was an
"erroneous exercise of judicial discretion" as the trial court relied hook, line and sinker on the
resolution of the secretary, without making its own independent determination of the merits of
the said resolution.

No Grave Abuse of Discretion in the

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

At the preliminary investigation stage, these requisites must show prima facie a wellfounded belief that a crime has been committed and that the accused probably
committed it. A cursory reading of the information immediately demonstrates a failure on
the part of the complainant to establish the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good intention or
justifiable motive for making it is shown. There is malice when the author of the imputation is
prompted by personal ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person who claims to have been defamed. 33 In this case, however, petitioner's
letter was written to seek redress of proper grievance against the inaccurate distribution and
payment of professional fees and against unfair treatment in the Nuclear Medicine Department
of the Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of
the Revised Penal Code which provides:
Art. 354. Requirement of publicity. Every defamatory imputation is presumed
to be malicious, even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of
any legal, moral or social duty; and
xxx xxx xxx
The rule on privileged communication is that a communication made in good faith on any
subject matter in which the communicator has an interest, or concerning which he has a duty, is
privileged if made to a person having a corresponding interest or duty, although it contains
incriminatory matter which, without the privilege, would be libelous and actionable. Petitioner's
letter was a private communication made in the performance of a moral duty on her part. Her
intention was not to inflict an unjustifiable harm on the private complainant, but to present her
grievance to her superior. The privileged nature of her letter overcomes the presumption of
malice. There is no malice when justifiable motive exists; and in the absence of malice, there is
no libel. We note that the information itself failed to allege the existence of malice.
Thus, we agree with the ruling of the secretary of justice: 34
. . . (T)he subject letter was written to bring to the attention of the Director of the
Philippine Heart Center for Asia and other responsible authorities the unjust and
unfair treatment that Dr. Ledesma was getting from government employees, and
the subject letter is a complaint . . . on a subject matter in which respondent has
an interest and in reference to which she has a duty to question the same is
definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro,
136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled
that "a communication made in good faith upon any subject matter in which the
party making the communication has an interest or concerning which he has a

duty is privileged although it contains incriminatory or derogatory matter which,

without the privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct
evidence of respondent's righteous disposition of following the rule of law and is
a clear indication that her purpose was to seek relief from the proper higher
authority . . . .
The same interpretation should be accorded the civil and administrative
complaints which respondent filed against complainants. They are mere
manifestations of her earnest desire to pursue proper relief for the alleged
injustice she got from complainants. If she was motivated by malice and ill-will in
sending the subject communication to the Director of the PHCA, she would not
have sent the second letter and filed the administrative and civil cases against
complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official
duties, sends a communication to another officer or to a body of officers, who have a duty to
perform with respect to the subject matter of the communication, such communication does not
amount to publication within the meaning of the law on defamation. 35 Publication in libel means
making the defamatory matter, after it has been written, known to someone other than the
person to whom it has been written. 36 The reason for such rule is that "a communication of the
defamatory matter to the person defamed cannot injure his reputation though it may wound his
self-esteem. A man's reputation is not the good opinion he has of himself, but the estimation in
which others hold him." 37 In this case, petitioner submitted the letter to the director of said
hospital; she did not disseminate the letter and its contents to third persons. Hence, there was
no "publicity" and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code.
Further, we note that the information against petitioner was filed only on July 27, 1992 or one
year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a
countercharge to give Complainant Torres a leverage against petitioner's administrative action
against him.
Ineluctably, Judge Asuncion's denial of the motion to withdraw the information and the
reconsideration thereof was not only precipitate but manifestly erroneous. This is further
compounded by the fact that he did not explain his grounds for his denial inasmuch as he did
not make an independent assessment of the motion or the arguments in the resolution of the
secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo
vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive
in Marceloand Martinez where this Court required trial courts to make an independent
assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to
Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No
costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 106695 August 4, 1994

EDWARD T. MARCELO, DIONILO D. MARFIL, CELIA C. CABURNAY, and DANIEL T.
PASCUAL, petitioners,
vs.
THE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, HON. PEDRO T.
SANTIAGO, in his capacity as The Presiding Judge of the Regional Trial Court of Quezon
City, Branch 101, and THE QUEZON CITY PROSECUTOR, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioners.

DAVIDE, JR., J.:

The issue in this case is whether a pre-arraignment dismissal of a criminal case by the trial
court, which relied on the reversal by the Review Committee of the Office of the City Prosecutor
of the investigating prosecutor's resolution to file the information, bars the filing of a new
information for the same offense after the Secretary of Justice reversed the resolution of the
review committee.
This case was originally assigned to the Third Division but was referred to the Court en banc in
view of the novelty and importance of the issue.
The procedural antecedents of this case, as disclosed by the original records of Criminal Case
No. Q-91-21285 1and Criminal Case No. Q-92-28104, which we required to be transmitted to
this Court, as well as that of the Court of Appeals in CA-G.R. SP No. 27681, are herein set forth.
In a complaint-affidavit sworn to on 18 March 1991 and filed with the Office of the City
Prosecutor of Quezon City, Jose T. Marcelo charged the petitioners with falsification of public
documents committed by forging the signature of Jose P. Marcelo, Sr. in six voting trust
agreements (VTA's). 2 Submitted in support of the affidavit-complaint were the findings of the
National Bureau of Investigation (NBI) and of the PC/PNP Crime Laboratory that the signature
on the VTA's purporting to be that of Jose P. Marcelo, Sr. and the specimen or standard
signature of the latter were not written by one and the same person. The VTA's 3 were

purportedly executed in Quezon City and acknowledged before petitioner Dionilo Marfil, a notary
public.
After conducting a preliminary investigation, Assistant City Prosecutor Domingo Israel found
"more than sufficient evidence" of the forgery of the signature of Jose P. Marcelo, Sr., as "found
and concluded by two (2) national police agencies, the NBI and PCCL," and recommended the
filing of the case in court. 4
On 30 May 1991, an information for falsification of public documents was filed with the Regional
Trial Court (RTC) of Quezon City, docketed as Criminal Case No. Q-91-21285, and raffled to
Branch 96 5 thereof (hereinafterBersamin court).
On 6 June 1991, the petitioners filed with the Office of the City Prosecutor of Quezon City a
Motion for Review seeking the deferment of the filing of the information or if one had been
filed, the suspension of the criminal proceedings and the reversal of the Israel resolution. 6
On 10 June 1991, warrants for the arrest of the petitioners were issued, 7 and all of them except
Edward Marcelo posted bail. 8 Marcelo surrendered to the court and posted bail on 29 July
1991. 9
On 13 June 1991, the petitioners, in a Manifestation and Motion, informed the Bersamin court of
the filing of their Motion for Review and prayed that further proceedings in the case be
suspended until the resolution of the Motion for Review. 10
On 14 June 1991, Assistant City Prosecutor Enrico Bringas, the prosecutor assigned to the
case, filed a motion to defer the arraignment until the resolution of the Motion for
Review, 11 which the Bersamin court granted in its Order of 10 July 1991. The Bersamin court,
however, reset the arraignment to 28 August 1991.
Then, on 27 August 1991, the petitioners filed an urgent motion to defer the arraignment on 28
August 1991 until the resolution of their Motion for Review. 12 Acting thereon, and over the
vigorous opposition of the private prosecutor, Judge Bersamin issued an order on 28 August
1991 13 resetting the arraignment to 8 October 1991 and directing the City Prosecutor of Quezon
City "to conclude the pending review of the resolution of the filing Prosecutor Domingo Israel
and to render a report of the results of the review on or before" 8 October 1991.
Believing that no resolution on the Motion for Review would be released before 8 October 1991
and considering that petitioner Marcelo was abroad, the petitioners filed on 3 October 1991 a
motion for the cancellation of the arraignment on 8 October 1991 and for its resetting to "early
November 1991." 14
There is no showing that this motion was acted upon. The records of Criminal Case No. Q-9121285 were thereafter destroyed by a fire on 16 October 1991 but were subsequently
reconstituted on 9 December 1991. 15

On 15 November 1991, the Review Committee handed down a resolution, 16 approved by Acting
City Prosecutor Lydia Navarro on 29 November 1991, recommending the reversal of the Israel
resolution and the withdrawal of the information in Criminal Case No. Q-91-21285. Then on 5
December 1991, the petitioners filed a Manifestation and Motion informing the Bersamin court of
the reversal and praying for the dismissal of the case. 17 This was followed on 10 December
1991 by the motion of Assistant City Prosecutor Conrado M. Jamolin which prayed for the
withdrawal of the information in Criminal Case No. Q-91-21285 because of the resolution of the
review committee. 18 The private prosecutor opposed this motion. 19
In the meantime too, specifically on 10 December 1991, the private complainant filed with the
Secretary of Justice an appeal from the 15 November 1991 resolution of the Review
Committee. 20
On 13 December 1991, Judge Bersamin, agreeing with the findings and conclusions of the
Review Committee, issued an order, 21 the dispositive portion of which reads:
ACCORDINGLY, the Motion to Dismiss of the accused and the Motion to
Withdraw Information of the public prosecutor are hereby granted and this
case is hereby dismissed without costs.
On 27 January 1992, then Secretary of Justice Silvestre R. Bello III handed down a resolution
granting the complainant's appeal, reversing the 15 November 1991 Resolution of the Review
Committee, and ordering the filing of a new information. 22
The new information, 23 signed by Assistant City Prosecutor Ralph Lee, was filed on 5 February
1992 pursuant to the resolution of Secretary Bello, docketed as Criminal Case No. Q-92-28104,
and then raffled to Branch 101 presided over by Judge Pedro Santiago (hereinafter Santiago
court) of the RTC of Quezon City. The petitioners posted bail. 24 Thereafter, the following
incidents took place in the said case:
1. On 3 March 1992, the petitioners filed a Motion to Quash the Information on the ground that
the dismissal of Criminal Case No. Q-91-21285 was already final and that the appeal
subsequently taken by the private prosecutor to and the resolution thereon by the Secretary of
Justice are null and void and cannot be a valid basis for any authority to file the new information
or for the court to acquire jurisdiction over the case. 25
2. On 20 March 1992, Judge Santiago issued an order denying the motion to quash on the
principal ground that it was not based on any of the grounds enumerated in Section 3, Rule 117
of the Rules of Court. 26
3. On 1 April 1992, the petitioners filed a motion to reconsider the 20 March 1992 Order alleging
therein that their motion to quash was based on the ground that the officer who filed the
information had no authority to do so and had acted pursuant to an order of the Secretary of
Justice which is void for having been given without or in excess of jurisdiction under the doctrine

laid down in Crespo vs. Mogul 27 that the Secretary of Justice cannot interfere with the trial
court's disposition of a criminal case after it had taken cognizance thereof. 28
4. On 2 April 1992, Judge Santiago denied the motion to reconsider and reset the arraignment
to 7 April 1992. 29
Thus, the petitioners filed with the Court of Appeals on 3 April 1992 a special civil action
for certiorari to set aside the order of the Santiago court denying the motion to quash, which was
docketed as CA-G.R. SP No. 27681. They alleged therein that the "respondent Judge evaded
his positive legal duty when he disregarded the consistent rulings of the Honorable Supreme
Court that once an information has already been filed in court, the court acquires complete
jurisdiction over the case and the Secretary of Justice may no longer interfere with the court's
disposition of the case." 30
In its decision of 11 June 1992, 31 the Court of Appeals denied due course to the petition. It
found it to be "devoid of merit" because
certiorari and prohibition are not the correct remedies against an order
denying a motion to quash. The defendant should instead, go to trial
without prejudice on his part to present the special defenses he had
invoked in his motion and, if after trial on the merits, an adverse decision
is rendered, to appeal therefrom in the manner authorized by law. 32
In the meantime, however, the Santiago court, not having been enjoined by the Court of
Appeals, continued with the proceedings in Criminal Case No. Q-92-28104. On 7 April 1992, it
arraigned petitioners Caburnay, Pascual, and Marfil, entered a plea of not guilty for them, and
reset the arraignment of petitioner Edward T. Marcelo, who was then abroad, to 28 April
1992. 33 On the latter date, Marcelo was arraigned and a plea of not guilty was entered for
him. 34 Subsequently, the court received the testimonies of the following witnesses for the
prosecution: Jose Marcelo, Jr., who testified on direct examination and cross-examination on 9
June 1992, 16 June 1992, and 14 July 1992; Emmanuel Guzman, who testified on 23 July
1992, 10 August 1992, and 20 August 1992; Aida Gaetos, who testified on 10 August 1992; and
Francisco Cruz, Lita Wells, Evelyn M. Eugenio, and Helier Penaranda, who testified on 13
August 1992.
On 31 August 1992, the Court of Appeals denied the petitioners' motion to reconsider the
decision of 11 June 1992. 35
Hence, the instant petition which reiterates the grounds and the arguments raised before the
Court of Appeals.
The petition is without merit.
The Court of Appeals correctly dismissed the petitioners' special civil action for certiorari not
necessarily for the reason it relied upon, i.e., "certiorari and prohibition are not the correct

remedies against an order denying a motion to quash," but because the Santiago court did not
act without or in excess of jurisdiction or with grave abuse of discretion in denying the motion to
quash. It is settled that if a court, in denying the motion to quash (or a motion to dismiss), acts
without or in excess of jurisdiction or with grave abuse of discretion, certiorari or prohibition
lies. 36
The denial by the Santiago court of the motion to quash suffers from no fatal infirmity. The
petitioners' contention that the prosecutor did not have the authority to file the information
because he acted upon an order of the Secretary of Justice which is void in the light of Crespo
vs. Mogul 37 is untenable. In the Crespo case, this Court ruled:
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[e] 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. 38
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.
Insofar as this case is concerned, the procedure on appeals from the resolution of the
investigating prosecutor (which was duly approved by the Office of the City Prosecutor of
Quezon City) as well as that from the resolution of the Review Committee was governed by
Department Circular No. 7, dated 25 January 1990, of the Department of Justice. This was
superseded by Department Order No. 223, dated 30 June 1993. Pursuant to Section 1 of
Department Circular No. 7, only resolutions of the Chief State Prosecutor, the Regional State

Prosecutor, and the Provincial or City Prosecutor dismissing a criminal complaint may be
appealed to the Secretary of Justice, except as otherwise provided in Section 4 thereof. Under
the latter, a resolution of the aforesaid prosecutors finding probable cause may be appealed
only upon a showing of manifest error or grave abuse of discretion; however, even with such
showing, the appeal shall not be entertained if the appellant had already been arraigned, and if
the arraignment took place during the pendency of the appeal, the appeal shall be
dismissed motu proprio by the Secretary of Justice.
In this case, the petitioners did not at once appeal to the Secretary of Justice from the resolution
of Assistant Prosecutor Israel. Instead, they initially filed the Motion for Review.
From the foregoing antecedents, it is clear that the Bersamin court knew and took cognizance of
the Motion for Review, deferred the arraignment of the accused until the resolution of the said
motion, and even directed the Office of the City Prosecutor "to conclude the pending review . . .
and to render a report of the results of the review on or before" 8 October 1991. In thus
recognizing and allowing the Motion for Review, the Bersamin court deferred to the authority of
the prosecution arm of the government to resolve with finality the issue of whether or not the
information should have been filed. The Review Committee's resolution was of course not final
because under Department Circular No. 7 both the offended party and the petitioners could still
appeal therefrom to the Secretary of Justice under Section 1 and Section 4 thereof. The
Bersamin court knew or was expected to know, since it had to take judicial notice of Department
Circular No. 7, that the resolution of the Review Committee was not final. The offended party
had, in fact, appealed from the said resolution to the Secretary of Justice on 10 December 1991.
Consequently, the 5 December 1991 Manifestation and Motion of the petitioners praying for the
dismissal of the case and the 10 December 1991 motion of Assistant City Prosecutor Jamolin
asking for the withdrawal of the information were prematurely filed, because as to the first, the
period of the offended party to appeal from the resolution to the Secretary of Justice had not yet
lapsed or even begun, there being no showing of the date the offended party received a copy
thereof; and, as to the second, an appeal had in fact been filed on 10 December 1991.
Prudence, if not wisdom or at the very least respect for the authority of the prosecution agency
to which the Bersamin court deferred, dictated against a favorable action on the Review
Committee's resolution until the denial of the appeal or the affirmance of the resolution by the
Secretary of Justice. The Bersamin court acted then with precipitate or undue haste in issuing
the 13 December 1991 Order granting the petitioners' motion to dismiss and Prosecutor
Jamolin's motion to withdraw the information in Criminal Case No. Q-91-21285.
Accordingly, we rule that the trial court in a criminal case which takes cognizance of an
accused's motion for review of the resolution of the investigating prosecutor or for
reinvestigation and defers the arraignment until resolution of the said motion must act on the
resolution reversing the investigating prosecutor's finding or on a motion to dismiss based
thereon only upon proof that such resolution is already final in that no appeal was taken
therefrom to the Department of Justice.

It may be observed that the granting of both motions is a serious contradiction in that upon
withdrawal of the information, which is the logical consequence of the grant of the motion to
withdraw, there no longer remained any case to dismiss. In fine, the withdrawal of the
information rendered moot the motion to dismiss.
The withdrawal of the information in Criminal Case No. Q-91- 21285, or even the dismissal of
the said case as decreed by the Bersamin court, did not bar the filing of a new information as
directed by the Secretary of Justice in his Resolution of 27 January 1992. No jeopardy had
attached as a result of the earlier termination of Criminal Case No. Q-91-21285 because the
petitioners therein had not been arraigned and had, in fact, asked for its dismissal for a cause
other than that which would constitute double jeopardy. On the contrary, the filing of the new
information in Criminal Case No. Q-92-28104 straightened the course of criminal justice which
had earlier gone awry due to the precipitate action of the Bersamin court. Nor may it be said that
the prosecutor who filed the information had no authority to do so.
The Santiago court, therefore, correctly denied the petitioners' motion to quash in Criminal Case
No. Q-92-28104 and the Court of Appeals committed no reversible error in dismissing the
petition in CA-G.R. SP No. 27681.
It must also be noted that the petitioners had already been arraigned in Criminal Case No. Q92-28104 and had participated in the trial on the merits by attending the reception of the
testimonies of the prosecution witnesses and even terminating the cross-examination of some
of them.
Before we end, a few words are in order by way of comment on the emphasis placed by our
brother, Mr. Justice Jose A. R. Melo, in his dissenting opinion, on the filing with the Office of the
Provincial Fiscal of Rizal in July 1988 by Mrs. Lilia S. Wells, first cousin of Edward Marcelo and
Jose Marcelo, Jr., of a criminal complaint for falsification of public documents involving the same
VTA's against petitioners Marcelo and Marfil, the dismissal thereof on 29 March 1989 by the
Rizal Provincial Prosecutor for insufficiency of evidence, 39 and the resolution of the Department
of Justice of 27 August 1989 dismissing the petition for review of the dismissal. The clear
suggestion is that the filing of the second criminal complaint with the Office of the City
Prosecutor of Quezon City is persecutive and should not be countenanced by this Court.
Our reading of the petitioners' Position Paper in the criminal complaint filed against them by
Jose Marcelo, Jr. with the City Prosecutor's Office of Quezon City (I.S. No. 91-3069) 40, the
motion for review, the motion to quash the information in Criminal Case No. Q-92-28104, the
petition in CA-G.R. SP No. 27681, and the petition in this case does not disclose any claim by
the petitioners that they are the victims of a vexatious or persecutive action. In the first
mentioned pleading, they simply stated that the "sole issue in this case [is] whether or not, on
the basis of the evidence submitted by the parties, there is sufficient ground to engender a well
founded belief that the crimes of Falsification of Public Documents and Use thereof have been
committed and that Respondents are probably guilty thereof and should be held for trial." 41 The
first complaint was filed by Mrs. Wells alone who was unable to present the findings of the

questioned documents examiner of the NBI and of the PC/PNP Crime Laboratory on the alleged
forgery of the signatures of Jose Marcelo, Sr. on the questioned VTA's. The latter and the
specimen or standard signature of Jose Marcelo, Sr. were submitted to these agencies only in
January and February 1991, respectively. 42 The second complaint was filed by Jose Marcelo,
Jr. who, by then, had already obtained the findings of the said agencies.
WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals
in CA-G.R. SP No. 27681 is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Regalado, Bellosillo, and Mendoza, JJ., concur.

Separate Opinions

ROMERO, J., dissenting:

I vote to grant the petition.
The records show that the information for falsification of public document docketed as Criminal
Case No. Q-92-28104 involves the same charges which had been twice investigated and
dismissed. The first charge filed by Mrs. Wells was dismissed by the Provincial Fiscal of Rizal
and affirmed by the Department of Justice. On the other hand, the second charge filed by Jose
T. Marcelo was the one where the Review Committee of Quezon City reversed the earlier
recommendation finding probable cause. These dismissals were based on a positive finding of
the genuineness and due execution by Jose T. Marcelo Sr. of the subject voting trust
agreements in favor of Edward Marcelo.
The resolution of the Secretary of Justice directing the filing of the information for falsification of
the VTA's was issued after it found merit in the appeal from the Review Committee's resolution.
The Secretary of Justice may, upon petition by a proper party, reverse the resolution of the
provincial or city fiscal concerned to file the corresponding information without conducting
another preliminary investigation or dismiss or move for the dismissal of the complaint or
information. 1 In this case, what is of consequence is the resolution of the Secretary of Justice
which came after the lower court had already granted the motion to dismiss and the motion to
withdraw information.

The rule regarding motions for reinvestigation once an information has already been filed in
court is now settled. 2In the case of Crespo v. Mogul, the Court held that:
The preliminary investigation conducted by the fiscal for the purpose of
determining whether aprima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the Court. The
only qualification is that the action of the Court must not impair the
substantial rights of the accused or the right of the People to due process
of law.
Whether the accused had been arraigned or not and whether it was due
to a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
xxx xxx xxx
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. 3
According to the records, before petitioners could be arraigned, they filed a petition for review
before the Review Committee which reversed the finding of Prosecutor Israel. Thereafter, the

prosecution filed a motion to withdraw and the defense, a motion to dismiss which were granted
by Judge Bersamin. This is in accord with Crespo where we said that "[a]fter such
reinvestigation the finding and recommendation of the fiscal should be submitted to the Court for
appropriate action. 4 Later, the Secretary of Justice reversed the Review Committee. Even
conceding the power of the Secretary of Justice to review the action of the prosecutors, the
Court has already cautioned him on the propriety of the appeals to him after an information or
complaint has been filed in court in this manner:
. . . 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. 5
It bears stressing that if the Court is encouraging the Secretary of Justice to refrain from
entertaining petitions for review or appeal once an information or complaint has been filed, there
is greater reason for him to do so in this case where the lower court has already exercised its
discretion based on the results of the reinvestigation. If the Secretary of Justice may no longer
interfere once the case is pending before the trial court, with more reason should he avoid
another review or appeal after the court has dismissed the same. Thus, in this case, we hold
that the Secretary of Justice acted with grave abuse of discretion or in excess of his jurisdiction
when he reviewed the appeal and ordered the re-filing of the information against petitioners.
The ultimate consequence of the Secretary of Justice's act of reviewing the findings of the
Review Committee is the indirect reversal of the order of Judge Bersamin who is the "best and
sole judge on what to do with the case before it." Such act of the Secretary of Justice is an
unmitigated reprobation and reversal of Judge Bersamin's order over which the former has no
authority whatsover. Therefore, the information docketed as Q-92-28104 is susceptible to
quashal.
MELO, J., dissenting:
I have to express dissent, regrettably, to the majority opinion penned by Mr. Justice Hilario G.
Davide, Jr., and would rather concur wholeheartedly in the opinion penned by Mme. Justice
Flerida R. Pineda-Romero. The highest traditions of this Court are best expressed in those
cases where, without deviating from time-tested procedures in the prosecution of criminal
cases, its latitudinarian approach in the protection of civil rights is manifested.
I agree that a stereotyped, mechanical and unvarying invocation of the doctrine that appeal,
not certiorari or prohibition, is the correct remedy to the denial of a motion to quash ignores
fundamental principles of fairness and justice. Rules of procedure are intended to safeguard the
interests of justice. Whether or not the prosecution of a criminal case should proceed should not
be determined purely on procedural points.
This Court in Acebedo vs. Sarmiento (36 SCRA 247 [1970]) stated that "the right to a speedy
trial means one free from vexatious, capricious and oppressive delays, its salutary objective
being to assure that an innocent person may be free from the anxiety and expense of a court

litigation . . ." It is not alone the right of an accused to have his guilt determined by a court of
justice within the shortest possible time compatible with the presentation and consideration of
legitimate defenses. Equally important is not to be brought to court at all, to be spared the
embarrassment, anxiety and expense of court litigation in proper cases. We stated
in Acebedo that the remedy for the non-observance of the above rule is habeas corpus where
the accused is already incarcerated or bycertiorari, prohibition or mandamus for the final
dismissal of the case. This is precisely what the decision is all about.
When a case like the instant petition, with all its attendant facts and circumstances, reaches us,
it is not in the best traditions of the Supreme Court to automatically approach it in the impulsive
and unvarying methodology of a criminal trial court and declare that the issues raised are
matters of defense to be interposed only at the trial.
Indeed, not infrequently, this court has departed from the general rule and, taking cognizance of
petitions forcertiorari involving orders denying motions to quash on the ground that it would be
unfair and unjust and violative of the constitutional rights of an accused, to require him to
undergo trial under an information which is legally flawed (Yap vs. Inciso, 105 Phil. 1307 [1959];
Pineda vs. Bartolome, 95 Phil. 930 [1954]; Villa vs. Ibanez, 88 Phil. 402 [1951]; Mead vs. Angel,
115 SCRA 256 [1982]), and so as to spare the courts from unnecessarily spending precious
time and energy and to save the accused from the inconvenience, anxiety and embarrassment,
let alone the expenditure of effort and money in undergoing a trial for a case the proceedings in
which could possibly be annulled for want of, or excess in, or with grave abuse of, jurisdiction
(Villa vs. Ibanez, supra, and Mead vs. Angel,supra).
The inhibiting circumstances to the application of the doctrine that certiorari and prohibition will
not lie against an order denying a motion to quash appear on record in this case as follows:
As stated, the criminal information for alleged falsification of public documents against
petitioners involves the same charges which had been twice investigated, passed upon and
twice dismissed, for lack or insufficiency of evidence, and based on a positive finding of the
genuineness and the due execution by Jose Marcelo, Sr. of the Voting Trust Agreements in
favor of Edward.
The First Case (I.S. No. 88-5729)
In July 1988, a criminal complaint against Edward and Marfil (I.S. No. 88-5729) for falsification
of public documents and use thereof was filed by Mrs. Lilia S. Wells, a first cousin of both Jose,
Jr. and Edward Mercelo. The documents alleged to have been falsified and involved were the
six (6) Voting Trust Agreements executed by Jose P. Marcelo, Sr. in favor of Edward.
In a resolution dated March 29, 1989, Rizal Provincial Prosecutor Mauro M. Castro, dismissed
for insufficiency of evidence I.S. No. 88-5729 (Annex "C", Petition). The Provincial Prosecutor
found that Jose P. Marcelo, Sr. actually did sign the Voting Trust Agreements. The Resolution, in
part, reads:

And so this Office does not find any prima facie case for
falsification or use of falsified documents nor that respondents are
probably guilty of the crimes charged. For, while complainant
relies on her own perception of a difference between signatures,
respondents have presented witnesses, not just two, but three at
the very least, who stated under oath that they had personally
seen the late Marcelo sign the questioned VTA's. In the absence
of any evidence showing that these witnesses are biased to the
extent of perjury their statements are entitled to full faith and
credit. (Annex C, Petition; p. 51, Rollo; Emphasis supplied.)
Wells then filed a petition for review with the Department of Justice. In a resolution dated August
27, 1989 (Annex D, Petition; p. 53-55, Rollo), the Department dismissed the Wells petition on
the following grounds.
. . . The fact that the late Marcelo had the intention to execute the
VTA's, as he did actually sign the same in favor of his son,
Edward, has been substantially proven. Edward at the time, was
already entrusted with such responsible positions as Secretary,
Director, Vice President, Vice-Chairman, etc. and his being "the
favorite son", is acknowledged by complainant. In their respective
affidavits, Daniel T. Pascual and Celia Caburnay, Director and
Asst. Corporate Secretary, respectively, of several Marcelo
corporations, who both signed as witnesses to the VTA's attest to
the fact that the directors gave their consent to resolutions
authorizing the late Marcelo to execute VTA's in favor of Edward.
Danilo Ibay, Chief Executive Officer of Marcelo Investment and
Management Corporation also attests to the same fact.
Magdaleno Cortez and Wilfredo Ersando, both directors of the
Marcelo Tire and Rubber Corporation likewise swore to the truth
that on February 21, 1987, the board in a regular meeting,
unanimously passed a resolution authorizing Jose P. Marcelo to
execute a Voting Trust Agreement in favor of Edward. The letter of
George T. Marcelo (Annex 1 of Supplemental Affidavit, Edward
Marcelo) who is residing in Australia confirms that the voting trust
given to Edward by their father is genuine, his father having
discussed the matter with him. Atty. Clarisa Pealosa of the Far
East Bank and Trust Company also confirms that the late Marcelo
had inquired on how to preserve the companies' assets and in her
reply, dated November 27, 1985, she delineated schemes, among,
them, the execution of VTA's.
xxx xxx xxx

xxx xxx xxx

xxx xxx xxx
Petitioner's (Well's) observation as to the difference between the
contemporary and questioned signatures of the late Marcelo, the
allegations of bias of respondent's witnesses and the issue as to
the authenticity of the minutes of the board meetings showing the
grant of authority to the late Marcelo to execute the VTA's, are
nonetheless inconclusive to prove the alleged falsification. They
are insufficient in the light of the positive testimonies of
eyewitnesses to the actual signing of the VTA's by the late
Marcelo and the uncontroverted proof of his prior intention to
execute the same. (pp. 54-55, Rollo; Emphasis supplied.)
The Second Case (I.S. No. 91-3049)
Criminal Case No. Q-91-21285
RTC-Quezon City, Branch 96
After the Department of Justice dismissed the Wells complaint (I.S. No. 88-5729), Jose Marcelo
filed a similarcriminal complaint against Edward Marcelo, Marfil, Caburnay and
Pascual involving the same voting trust agreements. This second complaint was docketed as
I.S. No. 91-3049 of the Office of the City Prosecutor of Quezon City. We quote once again the
narration by respondent Court of Appeals of the background facts, to wit:
On the basis of the investigating prosecutor's finding of a prima
facie case (Annex "F", hereof), an Information for falsification
against Edward, Marfil, Caburnay and Pascual was filed before
the Regional Trial Court of Quezon City, Branch 96 (Annex "G"
hereof). This criminal case was docketed as Criminal Case No. Q91-21285.
Petitioners moved for a review of the prima facie finding of the
investigating prosecutor (Annex "H" hereof). The review was
conducted by the Review Division ("the Review Division") of the
Office of the City Prosecutor of Quezon City. Meanwhile, the
Regional Trial Court, Branch 96, upon motion of the prosecution
and petitioners citing the pending Motion for Review, deferred the
arraignment in Criminal Case No. Q-91-21285.
On 15 November 1991, the Review Division recommended that
the Information in Criminal Case Q-91-21285 be withdrawn
(Annex "I" hereof).

The prosecution then moved to withdraw the Information in

Criminal Case No. Q-91-21285 (Annex "J" hereof). Petitioners, on
the other hand, filed a Manifestation and Motion praying that
Criminal Case No. Q-91-21285 be dismissed (Annex "K" hereof).
On 13 December 1991, the Regional Trial Court of Quezon City,
Branch 96 dismissed Criminal Case No. Q-91-21285 (Annex "L"
hereof). (Annex A, Petition, p. 39, Rollo.)
In dismissing the Information against petitioners in Criminal Case No. Q-91-21285, the
Honorable Lucas P. Bersamin, Presiding Judge of Branch 96 of the Regional Trial Court of
Quezon City, ruled:
The Court accords great respect to the findings of the Review
Division which it finds to be based on substantial grounds and are
highly persuasive. Therein, the Review Division squarely resolved
the issue of whether or not the signatures of the late Jose
Marcelo, Sr. in the six voting trust agreements (VTA's) were
genuine. The Division reasonably concluded that there was no
probable cause to hold the accused liable for falsification of the
VTA's after agreeing with and adopting the conclusions of the
Provincial Prosecutor of Rizal in a case involving the same
documents. (I.S. No. 88-5279)
In particular, the Division noted that the late elder Marcelo had
intended to execute the VTA's in favor of his son Edward who was
at the time already holding responsible positions in their business
aside from being "the favorite son"; that Daniel Pascual and Celia
Caburnay, accused herein, who were then a director and an
assistant corporate secretary, respectively, of several Marcelo
corporations and whose signatures were found on the VTA's in
their capacities as witnesses, attested to the fact that the directors
of the corporation had given their consent to the resolution
authorizing the late elder Marcelo to execute the VTA's in favor of
Edward; that Danilo Ibay, Chief Executive Officer of Marcelo
Investment and Management Corporation, attested to the same
facts, that Magdalena Cortez and Wilfredo Irsendo, Directors of
the Marcelo Tire and Rubber Corporation, likewise attested that
on February 21, 1987, the Board of Directors had unanimously
passed during a regular meeting a resolution authorizing the elder
Marcelo to execute a VTA in favor of Edward; that even George
Marcelo, now a resident of Australia, and brother of complainant
and accused Edward Marcelo, had confirmed by letter the
genuineness of the voting trust agreements executed by their

father in favor of Edward. For the Court to close its eyes to these
circumstances relied upon by the Division in rendering the
resolution in question would be unwarranted and unreasonable in
view of their persuasiveness.
Since the essence of the crime of falsification is malicious
falsehood, the existence and concurrence of all the circumstances
set forth in the questioned resolution absolutely exclude
falsification.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
ACCORDINGLY, the Motion to Dismiss of the accused and the
Motion to Withdraw Information of public prosecutor are hereby
granted and this case is hereby dismissed without costs. (Annex
Y, Petition, pp. 80-81, Rollo; Emphasis supplied.)
The Third Case (Crim. Case
No. Q-92-28104, RTC Quezon City,
Branch 101).
As further disclosed in the assailed decision of respondent Court of Appeals
Despite the Regional Trial court's dismissal of Criminal Case No.
Q-91-21285, Jose Jr. appealed the resolution of the Review
Division of the DOJ (Annex "M" hereof).
On 31 January 1992, the DOJ reversed the resolution of the
Review Division and ordered the re-filing of an Information against
petitioners (Annex "N").
An Information for falsification of public documents was filed
before the Regional Trial Court of Quezon City, Branch 101,
against petitioners docketed as Criminal Case No. Q-92-28104.
(Annex A, Petition, p. 40, Rollo.)
Petitioners contend in their instant petition, as they did in their motion to quash (Annex H,
Petition, pp. 82-91,Rollo) the Information in Criminal Case No. Q-92-28104, RTC Quezon City

Branch 101 presided by Judge Pedro Santiago, and in their petition in CA-G.R. No. 27681
(Annex K, Petition, pp. 103-127, Rollo) that:
When the Regional Trial Court, Quezon City, Branch 96, through
Honorable Judge Bersamin, took cognizance of the Resolution of
the Review Division of the City Prosecutor of Quezon City and on
the basis thereof dismissed Criminal Case No. Q-91-21285, it did
so in the exercise of its discretion and within the limits of its
jurisdiction. The Prosecution can no longer question the dismissal
of Criminal Case No. Q-91-21285 because in its order, the
Regional Trial Court, Quezon City Branch 96, made findings of
fact and law that the evidence against the petitioners are
insufficient to justify continuing with the criminal proceedings
against them.
The appeal taken by Jose Jr. to the Secretary of Justice and the
latter's review and reversal of the resolution of the Review Division
of the Prosecutor's Office of Quezon City are, therefore, null and
void. The Secretary of Justice cannot interfere with Honorable
Judge Bersamin's relative to the disposition of Criminal Case No.
Q-91-21285. By taking cognizance of the appeal and issuing the
Resolution, the Secretary of Justice usurped the power and
authority of the Regional Trial Court to determine whether to
continue with, or dismiss, the case.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
. . . respondent Judge should have granted the motion to quash or
the Court of Appeals should have reversed the denial thereof
through the writ of certiorari. By refusing to do so, respondent
Judge and the Court of Appeals violated said rulings. (pp. 23 &
25,Rollo.)
Earlier cases decided by this Court persuade me that premised on the peculiar contextual
background of the case at bench, the conclusions and opinion of Mme. Justice Romero are
correct. In said cases (Velasquez vs. Undersecretary of Justice, 182 SCRA 388 [1990]; Balgos
Jr. vs. Sandiganbayan, 176 SCRA 287 [1989]; Dungog vs. Court of Appeals, 159 SCRA 145
[1988]; Sta. Mining vs. Zabala, 153 SCRA 367 [1987]; Marquez vs. Alejo, 154 SCRA 302
[1987]), this Court laid down the rule that once an Information has already been filed in court,
the court acquires complete jurisdiction over the case and the investigating fiscal or the
Secretary of Justice should no longer entertain motions for reinvestigation.

I believe that the doctrine in Crespo vs. Mogul (151 SCRA 462 [1987] should be followed in this
case.
The Court ruled in Crespo vs. Mogul that:
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 recommendation of the fiscal
should be submitted to the court for appropriate action. (p.
463, Ibid; Emphasis supplied).
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
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 . . .(p. 463, Ibid; Emphasis supplied)
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the court. 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 . . .
(p. 471, Ibid; Emphasis supplied).
xxx xxx xxx

xxx xxx xxx

xxx xxx xxx
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. (at p. 47; Emphasis
supplied.)
It is not so much the observance of what to me are mere technicalities of procedure and not
substantial justice which should be emphasized. It should be the compliance with the principles
of fairness and justice underlying theCrespo vs. Mogul and other similar decisions that must
concern us. Under the circumstances of this case, we should not be overly apprehensive about
the exact time when the trial court acted on a case clearly within its jurisdiction, whether or not
petitioners should have withheld their motion to dismiss, whether or not the public prosecutor
should have deferred his motion to withdraw the information while the period to appeal from the
committee on review had not lapsed, whether or not express permission from the trial court for a
reinvestigation is absolutely necessary or it may be impliedly waived if the court knowingly
allows such a procedure to be followed and similar questions all revolving around technical rules
of procedure. To me, whether or not Crespo vs. Mogulapplies, the facts clearly show that to
deny this petition would be to deny substantial justice. There is no new evidence in the records.
The evidence twice dismissed by state prosecutors remains as inadequate as ever. The
important point is not to allow the strong arm of the law to be used in an oppressive manner in
such cases as the one before us.
I also respectfully submit that Judge Bersamin did not act hastily in dismissing the case and
granting the prosecutor's motion to withdraw the information. I understand that the records of
this case are around 400 pages. Judge Bersamin must have gone over the records. He had
strong factual and legal grounds to conclude that the signature appearing in the questioned
document is genuine.
The trial court had more than ample evidence to act as it did. I also submit with all due respect
that even in a case before the Supreme Court, there may be instances when we should not only
grant a motion to withdraw a petition but we may emphasize that the withdrawal be with
prejudice on the ground that the petition has no merit and warrants dismissal. Indeed, it is not
only the adjudicative function but also the more important role of emphasizing legal principles
that leads us to decide cases which are technically moot and academic. In this respect Judge
Bersamin did not really err.

In this case, whatever the Secretary of Justice says is only advisory and suggestive. The
discretion to allow the withdrawal of the information and dismissal of the action is vested in the
court. It is a discretion, a function of trial courts which we should honor and respect.
The Secretary of Justice thus, to my mind, exceeded his jurisdictional competence and acted
with grave abuse of discretion when he ordered the re-filing of the same criminal information
against petitioners involving the same voting trust agreements notwithstanding the fact that
Judge Bersamin in the second case (I.S. No. 91-3049; Civil Case No. Q-91-21285, RTC
Quezon City, Branch 96) had already ordered its dismissal, as it was actually dismissed on
December 13, 1991.
Further, on August 27, 1989, the Department of Justice affirmed the dismissal of the criminal
charges filed by Mrs. Wells against Edward, etc. in I.S. No. 88-5279 involving the same voting
trust agreements. The flip-flopping of the Department of Justice in the light of its earlier
resolution in the first case (Wells) leaves much to be desired.
The re-filing of the same Information for falsification of public documents docketed as Criminal
Case No. Q-92-28104 in Branch 101 of the RTC, Quezon City was unwarranted reprobation
and reversal of Judge Bersamin's order dismissing the Information in the second case, which
the Secretary of Justice has no authority whatsoever to do. From the time Branch 96 of the
Quezon City RTC acquired jurisdiction over the second case and, in the exercise of its
jurisdiction, thereafter ordered the dismissal thereof for lack or insufficiency of evidence, the
Secretary of Justice was divested of any authority to overturn such dismissal or to direct the refiling of another information involving the same charges and the same voting trust agreements,
in the absence, if it must be added, of new evidence. In Peralta vs. CFI (157 SCRA 476 [1988]),
we held:
This Court finds no reason to reverse the action taken by the trial
court. Once an information or complaint is filed in court, the matter
of disposition of the case is left to the sound discretion of the
court. When the trial court in the instant case granted the fiscal's
motion to dismiss, it was within its prerogative to do so.
On the matter of propriety of appeals to Secretary of Justice for
reinvestigation after the information or complaint has been filed in
court, the pronouncement made by this Court in the Crespo case
is applicable. In that case, the Court, although not entirely
disregarding the power of review of the
Secretary of Justice over the action of fiscals, imposed a limit on the
exercise of such power, thus:
In order therefor(e) 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; such a review of or appeal

should no longer be entertained by the Secretary of Justice when

the complaint or information had already been filed in court. The
matter should be left entirely for determination of the court. (at p.
480)
In Velasquez vs. Undersecretary of Justice (182 SCRA 388 [1990]), we held:
The petition is meritorious. This case is governed by our decision
in Crespo vs. Mogul, 151 SCRA 462, where we ruled that once the
information is filed in court, the court acquires complete jurisdiction over
it. A motion for reinvestigation should, after the court had acquired
jurisdiction over the case, be addressed to the trial judge and to him
alone. Neither the Secretary of Justice, the State Prosecutor, nor the
Fiscal may interfere with the judge's disposition of the case, much less
impose upon the court their opinion regarding the guilt or innocence of the
accused, for the court is the sole judge of that . . . (at p. 391.)
The re-filing, therefore, of the Information with Branch 101 of the Quezon City RTC against
petitioners by the Quezon City Prosecutor upon orders of the Secretary of Justice long after
Branch 96 of the same court ordered the dismissal of the Information in the second case
involving the same documents, was flawed and suffered from jurisdictional infirmity. The
Information is thus susceptible to quashal. Acts done with grave abuse of discretion or in excess
of jurisdiction must be struck down. The Information must be quashed. The peculiar
circumstances of this case require no less than the issuance of the privileged writ
of certiorari and prohibition to prevent the unlawful and oppressive exercise of legal authority
and to provide for a fair and orderly administration of justice (Lopez vs. City Judge, 18 SCRA
616 [1966]). Petitioners have no plain, speedy, and adequate remedy in the course of law.
Appeal is neither a speedy nor an adequate remedy, given the factual milieu in the case.
To require petitioners to undergo the rigors of trial under an information which is tainted with
jurisdictional infirmity, without prejudice to presenting the special defense they had invoked in
their motion, and if after trial on the merits, an adverse decision is rendered, to appeal,
therefrom, which course of action was laid down by Judge Santiago and affirmed by respondent
Court of Appeals when it denied the petition in CA-G.R. No. 27681, would indeed be oppressive.
Further, the trial court would be unnecessarily dragged into spending its precious time and
energy, and petitioners exposed to the inconvenience, anxiety, and embarrassment, not to
speak of the expenditure of time and money on a case which had been twice the subject of
preliminary investigation, passed upon and twice dismissed for lack or insufficiency of evidence
and absence of probable cause.
I, therefore, with the highest respect for the majority, must express my dissent and vote to give
due course to the petition.

# Separate Opinions

ROMERO, J., dissenting:

I vote to grant the petition.
The records show that the information for falsification of public document docketed as Criminal
Case No. Q-92-28104 involves the same charges which had been twice investigated and
dismissed. The first charge filed by Mrs. Wells was dismissed by the Provincial Fiscal of Rizal
and affirmed by the Department of Justice. On the other hand, the second charge filed by Jose
T. Marcelo was the one where the Review Committee of Quezon City reversed the earlier
recommendation finding probable cause. These dismissals were based on a positive finding of
the genuineness and due execution by Jose T. Marcelo Sr. of the subject voting trust
agreements in favor of Edward Marcelo.
The resolution of the Secretary of Justice directing the filing of the information for falsification of
the VTA's was issued after it found merit in the appeal from the Review Committee's resolution.
The Secretary of Justice may, upon petition by a proper party, reverse the resolution of the
provincial or city fiscal concerned to file the corresponding information without conducting
another preliminary investigation or dismiss or move for the dismissal of the complaint or
information. 1 In this case, what is of consequence is the resolution of the Secretary of Justice
which came after the lower court had already granted the motion to dismiss and the motion to
withdraw information.
The rule regarding motions for reinvestigation once an information has already been filed in
court is now settled. 2In the case of Crespo v. Mogul, the Court held that:
The preliminary investigation conducted by the fiscal for the purpose of
determining whether aprima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the Court. The
only qualification is that the action of the Court must not impair the
substantial rights of the accused or the right of the People to due process
of law.

Whether the accused had been arraigned or not and whether it was due
to a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
xxx xxx xxx
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. 3
According to the records, before petitioners could be arraigned, they filed a petition for review
before the Review Committee which reversed the finding of Prosecutor Israel. Thereafter, the
prosecution filed a motion to withdraw and the defense, a motion to dismiss which were granted
by Judge Bersamin. This is in accord with Crespo where we said that "[a]fter such
reinvestigation the finding and recommendation of the fiscal should be submitted to the Court for
appropriate action. 4 Later, the Secretary of Justice reversed the Review Committee. Even
conceding the power of the Secretary of Justice to review the action of the prosecutors, the
Court has already cautioned him on the propriety of the appeals to him after an information or
complaint has been filed in court in this manner:
. . . 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. 5
It bears stressing that if the Court is encouraging the Secretary of Justice to refrain from
entertaining petitions for review or appeal once an information or complaint has been filed, there
is greater reason for him to do so in this case where the lower court has already exercised its
discretion based on the results of the reinvestigation. If the Secretary of Justice may no longer
interfere once the case is pending before the trial court, with more reason should he avoid
another review or appeal after the court has dismissed the same. Thus, in this case, we hold
that the Secretary of Justice acted with grave abuse of discretion or in excess of his jurisdiction

when he reviewed the appeal and ordered the re-filing of the information against petitioners.
The ultimate consequence of the Secretary of Justice's act of reviewing the findings of the
Review Committee is the indirect reversal of the order of Judge Bersamin who is the "best and
sole judge on what to do with the case before it." Such act of the Secretary of Justice is an
unmitigated reprobation and reversal of Judge Bersamin's order over which the former has no
authority whatsover. Therefore, the information docketed as Q-92-28104 is susceptible to
quashal.
MELO, J., dissenting:
I have to express dissent, regrettably, to the majority opinion penned by Mr. Justice Hilario G.
Davide, Jr., and would rather concur wholeheartedly in the opinion penned by Mme. Justice
Flerida R. Pineda-Romero. The highest traditions of this Court are best expressed in those
cases where, without deviating from time-tested procedures in the prosecution of criminal
cases, its latitudinarian approach in the protection of civil rights is manifested.
I agree that a stereotyped, mechanical and unvarying invocation of the doctrine that appeal,
not certiorari or prohibition, is the correct remedy to the denial of a motion to quash ignores
fundamental principles of fairness and justice. Rules of procedure are intended to safeguard the
interests of justice. Whether or not the prosecution of a criminal case should proceed should not
be determined purely on procedural points.
This Court in Acebedo vs. Sarmiento (36 SCRA 247 [1970]) stated that "the right to a speedy
trial means one free from vexatious, capricious and oppressive delays, its salutary objective
being to assure that an innocent person may be free from the anxiety and expense of a court
litigation . . ." It is not alone the right of an accused to have his guilt determined by a court of
justice within the shortest possible time compatible with the presentation and consideration of
legitimate defenses. Equally important is not to be brought to court at all, to be spared the
embarrassment, anxiety and expense of court litigation in proper cases. We stated
in Acebedo that the remedy for the non-observance of the above rule is habeas corpus where
the accused is already incarcerated or bycertiorari, prohibition or mandamus for the final
dismissal of the case. This is precisely what the decision is all about.
When a case like the instant petition, with all its attendant facts and circumstances, reaches us,
it is not in the best traditions of the Supreme Court to automatically approach it in the impulsive
and unvarying methodology of a criminal trial court and declare that the issues raised are
matters of defense to be interposed only at the trial.
Indeed, not infrequently, this court has departed from the general rule and, taking cognizance of
petitions forcertiorari involving orders denying motions to quash on the ground that it would be
unfair and unjust and violative of the constitutional rights of an accused, to require him to
undergo trial under an information which is legally flawed (Yap vs. Inciso, 105 Phil. 1307 [1959];
Pineda vs. Bartolome, 95 Phil. 930 [1954]; Villa vs. Ibanez, 88 Phil. 402 [1951]; Mead vs. Angel,
115 SCRA 256 [1982]), and so as to spare the courts from unnecessarily spending precious
time and energy and to save the accused from the inconvenience, anxiety and embarrassment,

let alone the expenditure of effort and money in undergoing a trial for a case the proceedings in
which could possibly be annulled for want of, or excess in, or with grave abuse of, jurisdiction
(Villa vs. Ibanez, supra, and Mead vs. Angel,supra).
The inhibiting circumstances to the application of the doctrine that certiorari and prohibition will
not lie against an order denying a motion to quash appear on record in this case as follows:
As stated, the criminal information for alleged falsification of public documents against
petitioners involves the same charges which had been twice investigated, passed upon and
twice dismissed, for lack or insufficiency of evidence, and based on a positive finding of the
genuineness and the due execution by Jose Marcelo, Sr. of the Voting Trust Agreements in
favor of Edward.
The First Case (I.S. No. 88-5729)
In July 1988, a criminal complaint against Edward and Marfil (I.S. No. 88-5729) for falsification
of public documents and use thereof was filed by Mrs. Lilia S. Wells, a first cousin of both Jose,
Jr. and Edward Mercelo. The documents alleged to have been falsified and involved were the
six (6) Voting Trust Agreements executed by Jose P. Marcelo, Sr. in favor of Edward.
In a resolution dated March 29, 1989, Rizal Provincial Prosecutor Mauro M. Castro, dismissed
for insufficiency of evidence I.S. No. 88-5729 (Annex "C", Petition). The Provincial Prosecutor
found that Jose P. Marcelo, Sr. actually did sign the Voting Trust Agreements. The Resolution, in
part, reads:
And so this Office does not find any prima facie case for
falsification or use of falsified documents nor that respondents are
probably guilty of the crimes charged. For, while complainant
relies on her own perception of a difference between signatures,
respondents have presented witnesses, not just two, but three at
the very least, who stated under oath that they had personally
seen the late Marcelo sign the questioned VTA's. In the absence
of any evidence showing that these witnesses are biased to the
extent of perjury their statements are entitled to full faith and
credit. (Annex C, Petition; p. 51, Rollo; Emphasis supplied.)
Wells then filed a petition for review with the Department of Justice. In a resolution dated August
27, 1989 (Annex D, Petition; p. 53-55, Rollo), the Department dismissed the Wells petition on
the following grounds.
. . . The fact that the late Marcelo had the intention to execute the
VTA's, as he did actually sign the same in favor of his son,
Edward, has been substantially proven. Edward at the time, was
already entrusted with such responsible positions as Secretary,
Director, Vice President, Vice-Chairman, etc. and his being "the

favorite son", is acknowledged by complainant. In their respective

affidavits, Daniel T. Pascual and Celia Caburnay, Director and
Asst. Corporate Secretary, respectively, of several Marcelo
corporations, who both signed as witnesses to the VTA's attest to
the fact that the directors gave their consent to resolutions
authorizing the late Marcelo to execute VTA's in favor of Edward.
Danilo Ibay, Chief Executive Officer of Marcelo Investment and
Management Corporation also attests to the same fact.
Magdaleno Cortez and Wilfredo Ersando, both directors of the
Marcelo Tire and Rubber Corporation likewise swore to the truth
that on February 21, 1987, the board in a regular meeting,
unanimously passed a resolution authorizing Jose P. Marcelo to
execute a Voting Trust Agreement in favor of Edward. The letter of
George T. Marcelo (Annex 1 of Supplemental Affidavit, Edward
Marcelo) who is residing in Australia confirms that the voting trust
given to Edward by their father is genuine, his father having
discussed the matter with him. Atty. Clarisa Pealosa of the Far
East Bank and Trust Company also confirms that the late Marcelo
had inquired on how to preserve the companies' assets and in her
reply, dated November 27, 1985, she delineated schemes, among,
them, the execution of VTA's.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
Petitioner's (Well's) observation as to the difference between the
contemporary and questioned signatures of the late Marcelo, the
allegations of bias of respondent's witnesses and the issue as to
the authenticity of the minutes of the board meetings showing the
grant of authority to the late Marcelo to execute the VTA's, are
nonetheless inconclusive to prove the alleged falsification. They
are insufficient in the light of the positive testimonies of
eyewitnesses to the actual signing of the VTA's by the late
Marcelo and the uncontroverted proof of his prior intention to
execute the same. (pp. 54-55, Rollo; Emphasis supplied.)
The Second Case (I.S. No. 91-3049)
Criminal Case No. Q-91-21285
RTC-Quezon City, Branch 96

After the Department of Justice dismissed the Wells complaint (I.S. No. 88-5729), Jose Marcelo
filed a similarcriminal complaint against Edward Marcelo, Marfil, Caburnay and
Pascual involving the same voting trust agreements. This second complaint was docketed as
I.S. No. 91-3049 of the Office of the City Prosecutor of Quezon City. We quote once again the
narration by respondent Court of Appeals of the background facts, to wit:
On the basis of the investigating prosecutor's finding of a prima
facie case (Annex "F", hereof), an Information for falsification
against Edward, Marfil, Caburnay and Pascual was filed before
the Regional Trial Court of Quezon City, Branch 96 (Annex "G"
hereof). This criminal case was docketed as Criminal Case No. Q91-21285.
Petitioners moved for a review of the prima facie finding of the
investigating prosecutor (Annex "H" hereof). The review was
conducted by the Review Division ("the Review Division") of the
Office of the City Prosecutor of Quezon City. Meanwhile, the
Regional Trial Court, Branch 96, upon motion of the prosecution
and petitioners citing the pending Motion for Review, deferred the
arraignment in Criminal Case No. Q-91-21285.
On 15 November 1991, the Review Division recommended that
the Information in Criminal Case Q-91-21285 be withdrawn
(Annex "I" hereof).
The prosecution then moved to withdraw the Information in
Criminal Case No. Q-91-21285 (Annex "J" hereof). Petitioners, on
the other hand, filed a Manifestation and Motion praying that
Criminal Case No. Q-91-21285 be dismissed (Annex "K" hereof).
On 13 December 1991, the Regional Trial Court of Quezon City,
Branch 96 dismissed Criminal Case No. Q-91-21285 (Annex "L"
hereof). (Annex A, Petition, p. 39, Rollo.)
In dismissing the Information against petitioners in Criminal Case No. Q-91-21285, the
Honorable Lucas P. Bersamin, Presiding Judge of Branch 96 of the Regional Trial Court of
Quezon City, ruled:
The Court accords great respect to the findings of the Review
Division which it finds to be based on substantial grounds and are
highly persuasive. Therein, the Review Division squarely resolved
the issue of whether or not the signatures of the late Jose
Marcelo, Sr. in the six voting trust agreements (VTA's) were
genuine. The Division reasonably concluded that there was no
probable cause to hold the accused liable for falsification of the

VTA's after agreeing with and adopting the conclusions of the

Provincial Prosecutor of Rizal in a case involving the same
documents. (I.S. No. 88-5279)
In particular, the Division noted that the late elder Marcelo had
intended to execute the VTA's in favor of his son Edward who was
at the time already holding responsible positions in their business
aside from being "the favorite son"; that Daniel Pascual and Celia
Caburnay, accused herein, who were then a director and an
assistant corporate secretary, respectively, of several Marcelo
corporations and whose signatures were found on the VTA's in
their capacities as witnesses, attested to the fact that the directors
of the corporation had given their consent to the resolution
authorizing the late elder Marcelo to execute the VTA's in favor of
Edward; that Danilo Ibay, Chief Executive Officer of Marcelo
Investment and Management Corporation, attested to the same
facts, that Magdalena Cortez and Wilfredo Irsendo, Directors of
the Marcelo Tire and Rubber Corporation, likewise attested that
on February 21, 1987, the Board of Directors had unanimously
passed during a regular meeting a resolution authorizing the elder
Marcelo to execute a VTA in favor of Edward; that even George
Marcelo, now a resident of Australia, and brother of complainant
and accused Edward Marcelo, had confirmed by letter the
genuineness of the voting trust agreements executed by their
father in favor of Edward. For the Court to close its eyes to these
circumstances relied upon by the Division in rendering the
resolution in question would be unwarranted and unreasonable in
view of their persuasiveness.
Since the essence of the crime of falsification is malicious
falsehood, the existence and concurrence of all the circumstances
set forth in the questioned resolution absolutely exclude
falsification.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
ACCORDINGLY, the Motion to Dismiss of the accused and the
Motion to Withdraw Information of public prosecutor are hereby
granted and this case is hereby dismissed without costs. (Annex
Y, Petition, pp. 80-81, Rollo; Emphasis supplied.)

The Third Case (Crim. Case

No. Q-92-28104, RTC Quezon City,
Branch 101).
As further disclosed in the assailed decision of respondent Court of Appeals
Despite the Regional Trial court's dismissal of Criminal Case No.
Q-91-21285, Jose Jr. appealed the resolution of the Review
Division of the DOJ (Annex "M" hereof).
On 31 January 1992, the DOJ reversed the resolution of the
Review Division and ordered the re-filing of an Information against
petitioners (Annex "N").
An Information for falsification of public documents was filed
before the Regional Trial Court of Quezon City, Branch 101,
against petitioners docketed as Criminal Case No. Q-92-28104.
(Annex A, Petition, p. 40, Rollo.)
Petitioners contend in their instant petition, as they did in their motion to quash (Annex H,
Petition, pp. 82-91,Rollo) the Information in Criminal Case No. Q-92-28104, RTC Quezon City
Branch 101 presided by Judge Pedro Santiago, and in their petition in CA-G.R. No. 27681
(Annex K, Petition, pp. 103-127, Rollo) that:
When the Regional Trial Court, Quezon City, Branch 96, through
Honorable Judge Bersamin, took cognizance of the Resolution of
the Review Division of the City Prosecutor of Quezon City and on
the basis thereof dismissed Criminal Case No. Q-91-21285, it did
so in the exercise of its discretion and within the limits of its
jurisdiction. The Prosecution can no longer question the dismissal
of Criminal Case No. Q-91-21285 because in its order, the
Regional Trial Court, Quezon City Branch 96, made findings of
fact and law that the evidence against the petitioners are
insufficient to justify continuing with the criminal proceedings
against them.
The appeal taken by Jose Jr. to the Secretary of Justice and the
latter's review and reversal of the resolution of the Review Division
of the Prosecutor's Office of Quezon City are, therefore, null and
void. The Secretary of Justice cannot interfere with Honorable
Judge Bersamin's relative to the disposition of Criminal Case No.
Q-91-21285. By taking cognizance of the appeal and issuing the
Resolution, the Secretary of Justice usurped the power and

authority of the Regional Trial Court to determine whether to

continue with, or dismiss, the case.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
. . . respondent Judge should have granted the motion to quash or
the Court of Appeals should have reversed the denial thereof
through the writ of certiorari. By refusing to do so, respondent
Judge and the Court of Appeals violated said rulings. (pp. 23 &
25,Rollo.)
Earlier cases decided by this Court persuade me that premised on the peculiar contextual
background of the case at bench, the conclusions and opinion of Mme. Justice Romero are
correct. In said cases (Velasquez vs. Undersecretary of Justice, 182 SCRA 388 [1990]; Balgos
Jr. vs. Sandiganbayan, 176 SCRA 287 [1989]; Dungog vs. Court of Appeals, 159 SCRA 145
[1988]; Sta. Mining vs. Zabala, 153 SCRA 367 [1987]; Marquez vs. Alejo, 154 SCRA 302
[1987]), this Court laid down the rule that once an Information has already been filed in court,
the court acquires complete jurisdiction over the case and the investigating fiscal or the
Secretary of Justice should no longer entertain motions for reinvestigation.
I believe that the doctrine in Crespo vs. Mogul (151 SCRA 462 [1987] should be followed in this
case.
The Court ruled in Crespo vs. Mogul that:
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 recommendation of the fiscal
should be submitted to the court for appropriate action. (p.
463, Ibid; Emphasis supplied).
xxx xxx xxx
xxx xxx xxx

xxx xxx xxx

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 . . .(p. 463, Ibid; Emphasis supplied)
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the court. 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 . . .
(p. 471, Ibid; Emphasis supplied).
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
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. (at p. 47; Emphasis
supplied.)
It is not so much the observance of what to me are mere technicalities of procedure and not
substantial justice which should be emphasized. It should be the compliance with the principles
of fairness and justice underlying theCrespo vs. Mogul and other similar decisions that must
concern us. Under the circumstances of this case, we should not be overly apprehensive about
the exact time when the trial court acted on a case clearly within its jurisdiction, whether or not
petitioners should have withheld their motion to dismiss, whether or not the public prosecutor
should have deferred his motion to withdraw the information while the period to appeal from the
committee on review had not lapsed, whether or not express permission from the trial court for a

reinvestigation is absolutely necessary or it may be impliedly waived if the court knowingly

allows such a procedure to be followed and similar questions all revolving around technical rules
of procedure. To me, whether or not Crespo vs. Mogulapplies, the facts clearly show that to
deny this petition would be to deny substantial justice. There is no new evidence in the records.
The evidence twice dismissed by state prosecutors remains as inadequate as ever. The
important point is not to allow the strong arm of the law to be used in an oppressive manner in
such cases as the one before us.
I also respectfully submit that Judge Bersamin did not act hastily in dismissing the case and
granting the prosecutor's motion to withdraw the information. I understand that the records of
this case are around 400 pages. Judge Bersamin must have gone over the records. He had
strong factual and legal grounds to conclude that the signature appearing in the questioned
document is genuine.
The trial court had more than ample evidence to act as it did. I also submit with all due respect
that even in a case before the Supreme Court, there may be instances when we should not only
grant a motion to withdraw a petition but we may emphasize that the withdrawal be with
prejudice on the ground that the petition has no merit and warrants dismissal. Indeed, it is not
only the adjudicative function but also the more important role of emphasizing legal principles
that leads us to decide cases which are technically moot and academic. In this respect Judge
Bersamin did not really err.
In this case, whatever the Secretary of Justice says is only advisory and suggestive. The
discretion to allow the withdrawal of the information and dismissal of the action is vested in the
court. It is a discretion, a function of trial courts which we should honor and respect.
The Secretary of Justice thus, to my mind, exceeded his jurisdictional competence and acted
with grave abuse of discretion when he ordered the re-filing of the same criminal information
against petitioners involving the same voting trust agreements notwithstanding the fact that
Judge Bersamin in the second case (I.S. No. 91-3049; Civil Case No. Q-91-21285, RTC
Quezon City, Branch 96) had already ordered its dismissal, as it was actually dismissed on
December 13, 1991.
Further, on August 27, 1989, the Department of Justice affirmed the dismissal of the criminal
charges filed by Mrs. Wells against Edward, etc. in I.S. No. 88-5279 involving the same voting
trust agreements. The flip-flopping of the Department of Justice in the light of its earlier
resolution in the first case (Wells) leaves much to be desired.
The re-filing of the same Information for falsification of public documents docketed as Criminal
Case No. Q-92-28104 in Branch 101 of the RTC, Quezon City was unwarranted reprobation
and reversal of Judge Bersamin's order dismissing the Information in the second case, which
the Secretary of Justice has no authority whatsoever to do. From the time Branch 96 of the
Quezon City RTC acquired jurisdiction over the second case and, in the exercise of its
jurisdiction, thereafter ordered the dismissal thereof for lack or insufficiency of evidence, the
Secretary of Justice was divested of any authority to overturn such dismissal or to direct the re-

filing of another information involving the same charges and the same voting trust agreements,
in the absence, if it must be added, of new evidence. In Peralta vs. CFI (157 SCRA 476 [1988]),
we held:
This Court finds no reason to reverse the action taken by the trial
court. Once an information or complaint is filed in court, the matter
of disposition of the case is left to the sound discretion of the
court. When the trial court in the instant case granted the fiscal's
motion to dismiss, it was within its prerogative to do so.
On the matter of propriety of appeals to Secretary of Justice for
reinvestigation after the information or complaint has been filed in
court, the pronouncement made by this Court in the Crespo case
is applicable. In that case, the Court, although not entirely
disregarding the power of review of the
Secretary of Justice over the action of fiscals, imposed a limit on the
exercise of such power, thus:
In order therefor(e) 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; such a review of or appeal
should no longer be entertained by the Secretary of Justice when
the complaint or information had already been filed in court. The
matter should be left entirely for determination of the court. (at p.
480)
In Velasquez vs. Undersecretary of Justice (182 SCRA 388 [1990]), we held:
The petition is meritorious. This case is governed by our decision
in Crespo vs. Mogul, 151 SCRA 462, where we ruled that once the
information is filed in court, the court acquires complete jurisdiction over
it. A motion for reinvestigation should, after the court had acquired
jurisdiction over the case, be addressed to the trial judge and to him
alone. Neither the Secretary of Justice, the State Prosecutor, nor the
Fiscal may interfere with the judge's disposition of the case, much less
impose upon the court their opinion regarding the guilt or innocence of the
accused, for the court is the sole judge of that . . . (at p. 391.)
The re-filing, therefore, of the Information with Branch 101 of the Quezon City RTC against
petitioners by the Quezon City Prosecutor upon orders of the Secretary of Justice long after
Branch 96 of the same court ordered the dismissal of the Information in the second case
involving the same documents, was flawed and suffered from jurisdictional infirmity. The
Information is thus susceptible to quashal. Acts done with grave abuse of discretion or in excess
of jurisdiction must be struck down. The Information must be quashed. The peculiar

circumstances of this case require no less than the issuance of the privileged writ
of certiorari and prohibition to prevent the unlawful and oppressive exercise of legal authority
and to provide for a fair and orderly administration of justice (Lopez vs. City Judge, 18 SCRA
616 [1966]). Petitioners have no plain, speedy, and adequate remedy in the course of law.
Appeal is neither a speedy nor an adequate remedy, given the factual milieu in the case.
To require petitioners to undergo the rigors of trial under an information which is tainted with
jurisdictional infirmity, without prejudice to presenting the special defense they had invoked in
their motion, and if after trial on the merits, an adverse decision is rendered, to appeal,
therefrom, which course of action was laid down by Judge Santiago and affirmed by respondent
Court of Appeals when it denied the petition in CA-G.R. No. 27681, would indeed be oppressive.
Further, the trial court would be unnecessarily dragged into spending its precious time and
energy, and petitioners exposed to the inconvenience, anxiety, and embarrassment, not to
speak of the expenditure of time and money on a case which had been twice the subject of
preliminary investigation, passed upon and twice dismissed for lack or insufficiency of evidence
and absence of probable cause.
I, therefore, with the highest respect for the majority, must express my dissent and vote to give
due course to the petition.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 171643

August 8, 2010

FILEMON A. VERZANO, JR., Petitioner,

vs.
FRANCIS VICTOR D. PARO, JANET A FLORENCIO, HON. REGIONAL STATE
PROSECUTOR, and HON. CITY PROSECUTOR OF BACOLOD, Respondents.
DECISION
PERALTA, J.:
Before this Court is a petition for review on certiorari,1 under Rule 45 of the Rules of Court,
seeking to set aside the July 28, 2005 Decision2 and the February 7, 2006 Resolution3 of the
Court of Appeals (CA) in CA-G.R. SP No. 86521.
The facts of the case are as follows:

On March 14, 2002, petitioner Filemon A. Verzano, Jr., former District Manager of Wyeth
Philippines, Inc. (Wyeth) for the islands of Panay and Negros, was dismissed from service upon
an administrative complaint filed against him. Among the individuals who filed the complaint
against petitioner were respondents Francis Victor D. Paro (Paro) and Janet A. Florencio
(Florencio) who were territory managers under the supervision of petitioner.
The complaint was founded on petitioners alleged violation of company policy on prohibited
sale of drug samples given for free to doctors and for the unauthorized act of "channeling," or
the transfer of stocks within the same area falsely creating an impression that there was a sale.
After conducting its own investigation and giving petitioner an opportunity to explain his side,
Wyeth resolved to dismiss petitioner tendering him a Notice of Termination.4
Aggrieved by his termination, petitioner filed a Complaint5 for illegal dismissal with the Regional
Labor Arbitration Board, National Labor Relations Commission (NLRC), Bacolod City against
Wyeth. For its part, Wyeth filed its Position Paper to rebut the charges of petitioner. Attached to
the position paper of Wyeth were the affidavits6 of respondents Paro and Florencio.
It was on account of the said affidavits that petitioner filed a criminal complaint7 against
respondents for perjury, false testimony and incriminatory machination. In said complaint,
petitioner argued that the affidavits of respondents contained falsehoods against him,
particularly on the material date of the alleged sale and the fact that he sold products which are
to be given free to doctors. He also argued that the alleged acts of "channeling" by him are false
and unfounded.
Subpoenas were issued by the City Prosecutor against respondents for the submission of their
respective counter-affidavits; however, the return of the subpoenas showed that respondents
could not be located at their given addresses.
In a Resolution8 dated March 3, 2004, notwithstanding that no counter-affidavits were submitted
by respondents, the City Prosecutor resolved to dismiss petitioners complaint, the dispositive
portion of which reads:
WHEREFORE, finding no probable cause, all the charges are hereby recommended dismissed
for insufficiency of evidence.9
Petitioner then filed a motion for reconsideration,10 which was, however, denied by the City
Prosecutor in a Resolution11 dated June 11, 2004.
Petitioner appealed the Resolution of the City Prosecutor to the Office of Regional State
Prosecutor via a petition for review.12 On July 30, 2004, the Regional State Prosecutor issued a
Resolution13 finding merit in petitioners appeal, the dispositive portion of which reads:
WHEREFORE, your Resolution dated March 3, 2004 is hereby reversed and you are hereby
directed to file the appropriate information for Perjury against Francis Victor D. [Paro] and Janet

A. Florencio within (5) days from receipt hereof, furnishing this Office with proof of compliance
within the same period.14
Aggrieved, respondents filed a motion for reconsideration.15 In a Resolution16 dated August 25,
2004, the Regional State Prosecutor denied respondents motion.
On September 20, 2004 two Informations for perjury were filed against respondents in the
Municipal Trial Court in the Cities (MTCC), Bacolod City. The Information against respondent
Florencio was docketed as Criminal Case No. 049-8479, whereas, the Information against
respondent Paro was docketed as Criminal Case No. 049-8480.
On the same day, September 20, 2004, respondents filed a petition for certiorari before the CA
assailing the Resolutions of the Regional State Prosecutor which reversed the earlier Resolution
of the City Prosecutor. Respondents likewise prayed for the issuance of a temporary restraining
order (TRO) from the CA.
On October 7, 2004, the MTCC issued Warrants of Arrest against respondents. On the same
day, respondent Florencio posted bail. Respondent Paro followed suit on October 8, 2004.
In a Resolution dated October 14, 2004, a TRO was issued by the CA, the pertinent portion of
which reads:
xxxx
In order not to render moot and academic the instant petition, a temporary restraining order
(TRO) is hereby issued temporarily enjoining the public respondent Chief Prosecutor from
acting on the assailed Order issued by the public respondent Regional State Prosecutor for a
period of sixty (60) days from receipt hereof.17
In light of the issuance of a TRO by the CA, respondents filed with the MTCC a Manifestation
and Urgent Motion to Suspend Proceedings18 on November 2, 2004.
On November 10, 2004, the MTCC issued an Order,19 granting respondents motion to suspend
the proceedings.
On July 28, 2005, the CA rendered a Decision,20 ruling in favor of respondents, the dispositive
portion of which reads:
WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the
assailed Resolutions dated July 30, 2004 and August 25, 2004 are REVERSED and SET
ASIDE.
SO ORDERED.21

In ruling against petitioner, the CA ruled, among others, that the Regional State Prosecutor
committed grave abuse of discretion when he directed the filing of the Informations for perjury
on the simple reason that no counter-affidavits were submitted by respondents. In addition, the
CA held that even though the Informations had already been filed in the MTCC, the same did
not bar the CA from reviewing and correcting acts tainted with grave abuse of discretion.
Aggrieved, petitioner filed a motion for reconsideration, which was, however, denied by the CA
in a Resolution22dated February 7, 2006.
Hence, herein petition, with petitioner raising the following issues for this Courts consideration,
to wit:
I.
THE PETITION FILED BY PRIVATE RESPONDENTS WITH THE COURT OF APPEALS HAD
BEEN RENDERED MOOT AND ACADEMIC BY THE FILING OF THE CASES IN COURT.
II.
THE REGIONAL STATE PROSECUTOR DID NOT COMMIT GRAVE ABUSE OF DISCRETION
IN REVERSING THE RESOLUTION OF THE CITY PROSECUTOR.
III.
THE PETITION FOR CERTIORARI FILED BY HEREIN PRIVATE RESPONDENTS WITH THE
HONORABLE COURT OF APPEALS IS NOT THE PROPER REMEDY.23
The petition has no merit.
Anent the first issue, petitioner argues that the filing of the informations in the MTCC had
already removed the cases from the power and authority of the prosecution to dismiss the same
in accordance with the doctrine laid down in Crespo v. Mogul24 (Crespo), to wit:
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.25

In addition, petitioner points out that warrants of arrest were already issued by the MTCC and
that respondents had already individually posted bail. Petitioner thus concludes, that the issue
of whether or not the Regional State Prosecutor committed grave abuse of discretion when he
directed the filing of Informations for perjury against respondents had already become moot and
academic.
Petitioner is not entirely correct. As discussed in Ledesma v. Court of Appeals26 (Ledesma),
Crespo does not foreclose an appeal made to the resolution of a prosecutor in the determination
of probable cause notwithstanding that informations had already been filed in court, to wit:
In Marcelo vs. Court of Appeals, the Court clarified that Crespo did not foreclose the power or
authority of the secretary of justice to review resolutions of his subordinates in criminal cases.
The Court recognized in Crespothat the action of the investigating fiscal or prosecutor in the
preliminary investigation is subject to the approval of the provincial or city fiscal or chief state
prosecutor. Thereafter, it may be appealed to the secretary of justice.
The justice secretary's power of review may still be availed of despite the filing of an information
in court. x x x27
In the case at bar, while it is generally the Secretary of Justice who has the authority to review
the decisions of the prosecutors, this Court agrees with the CA that the same precedential
principles apply in full force and effect to the authority of the CA to correct the acts tainted with
grave abuse of discretion by the prosecutorial officers notwithstanding the filing of the
informations before the MTCC.28 The authority of the CA is bolstered by the fact that the petition
filed before it was one under Rule 65, therefore it has the jurisdiction to determine whether or
not the Regional State Prosecutor acted with grave abuse of discretion amounting to lack or
excess of jurisdiction.
Ledesma29 adds that where the secretary of justice exercises his power of review only after an
Information has been filed, trial courts should defer or suspend arraignment and further
proceedings until the appeal is resolved. On this note, the MTCC was thus correct when it
suspended the proceedings in view of the appeal taken by respondents to the resolution of the
Regional State Prosecutor. As observed by the CA, the suspension of the proceedings by the
MTCC was done in the exercise of its jurisdiction, to wit:
To a certain extent, the respondents asseverations are correct when they say by the operative
act of filing of the informations before it, the MTCC has acquired jurisdiction over the criminal
proceedings against petitioners. Indeed, the suspension of said proceedings is one such
exercise of jurisdiction, and therefore, respondents worries of the MTCC being divested of
jurisdiction or competence over the proceedings are at best, speculative and illusory.30
Anent the second issue raised by petitioner, the same is without merit. Petitioner argues that the
Regional State Prosecutor did not commit grave abuse of discretion when it reversed the finding
of the city prosecutor that no probable cause existed to warrant the filing of the Informations
against respondents.

In finding grave abuse of discretion, the CA opined that the Regional State Prosecutor reversed
the finding of the City Prosecutor on the simple reason that respondents failed to submit
counter-affidavits. The CA ruled that it would have been different had the Regional State
Prosecutor reversed the resolutions of his subordinate upon a positive finding of probable
cause.
The pertinent portions of the July 30, 2004 Resolution of the Regional State Prosecutor is
hereunder reproduced, to wit:
Perusal of the affidavits executed by Francis Victor D. [Paro] and Janet A. Florencio reveals the
following:
a) The material matter contained in these affidavits refer to the act of selling by Filemon
Verzano, Jr. of Tazocin products intended to be distributed as free samples in violation of
company policy. The date when the sale was made is not a material issue.
b) The affidavits of the respondent were executed before a Labor Arbiter and a Notary
Public who are persons authorized to administer oaths.
c) There is also no question that these affidavits are required by law as they were
attached as part of the position paper submitted with the Labor Arbiter handling the labor
case.
d) Although there is yet no clear evidence that there was an apparent willful and
deliberate assertion of falsehood on their part, the respondents by their failure to file or
submit their respective counter-affidavit for their defense, are deemed to have waived
the same and in effect, the allegations in the complaint remain uncontroverted.
The case record will show that your Office, in the determination of probable cause vis--vis the
attending set of facts and circumstances, failed to consider the application of the procedure laid
down under Section 3 paragraph (d) of Rule 112 of the Revised Rules of Procedure which
provides:
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.
Only a counter-affidavit subscribed and sworn to by the respondent before the Public
Prosecutor can dispute or put at issue the allegations in the complaint thus, a respondent who
fails to submit his counter-affidavit within the required period is deemed not to have controverted
the complainants evidence.31
Contrary to the claim of petitioner that the Regional State Prosecutor found probable cause, the
July 30, 2004 Resolution does not show that the latter actually made an independent
assessment of the evidence presented in the investigation. As a matter of fact, the clear import

of the July 30, 2004 Resolution is that the mere failure of respondents to submit counteraffidavits automatically warrants a finding of probable cause against them.ten.lihpwal The
fallacy in such theory is very apparent and the CA is thus correct when it observed that:
To follow the public respondent Regional State Prosecutors skewed premise that only counteraffidavits can dispute or controvert allegations in the Complaint, would be to perpetuate an
absurdity wherein a criminal complaint should automatically be resolved in favor of the
complainant in the absence of counter-affidavits. x x x32
It is not disputed that the Regional State Prosecutor has the authority to reverse the findings of
the existence of probable cause on review. However, a perusal of the July 30, 2004 Resolution
would show that little attempt was made by the Regional State Prosecutor to discuss the
existence or non-existence of probable cause and that much reliance was made on a flawed
interpretation of Section 3, paragraph (d) of the Revised Rules of Procedure.1avvphi1
What makes matters worse is that in his August 25, 2004 Resolution which dealt with
respondents Motion for Reconsideration, the Regional State Prosecutor stuck with his theory
and even relied on another flawed interpretation of Section 3, paragraph (b) of Rule 112, to wit:
x x x It would have been a different scenario if it falls within the scope of Rule 112, Section 3,
paragraph (b) which provides:
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.
In the instant case, the Investigating Prosecutor found ground to continue with the inquiry which
is why he issued subpoenas to the respondents to submit their counter affidavit within the 10day period, since he could have dismissed it initially if indeed there was really no evidence to
serve as a ground for continuing with the inquiry. For failure of the respondents to file their
respective counter-affidavits, they are deemed to have forfeited their right to preliminary
investigation as due process only requires that the respondent be given the opportunity to
submit counter-affidavit, if he is so minded. x x x33
The clear import of Section 3, paragraph (b), of Rule 112 is that the Investigating Prosecutor
may issue subpoenas if he finds grounds to continue with the investigation. However, the
continuance of the investigation does not necessarily mean that the result will be an automatic
conclusion of a finding of probable cause. To subscribe to such a theory would defeat the very
purpose of a counter-affidavit which is to honor due process and to provide respondents an
opportunity to refute the allegations made against them. Again, the conclusion reached by the
Regional State Prosecutor is manifestly wrong as the CA was correct when it observed that the
issuance of a subpoena would become unceremoniously clothed with the untoward implication
that probable cause is necessarily extant.34

Based on the foregoing, because of the manner by which the Regional State Prosecutor
resolved the case, this Court finds that the same constitutes grave abuse of discretion, as his
interpretation and appreciation of the Rules of Court have no legal bases.
Lastly, petitioner argues that the petition for certiorari filed by respondents with the CA was the
wrong remedy, considering that the proper procedure was to appeal to the Secretary of Justice
under Department Circular No. 70,35 otherwise known as the "2000 NPS Rule on Appeal."
The same deserves scant consideration.
Time and again, this Court has held that the principle of exhaustion of administrative remedies is
not without exception. Based on the previous discussion, the actions of the Regional State
Prosecutor, being patently illegal amounting to lack or excess of jurisdiction, the same
constitutes an exception to the rule on administrative remedies.36
Finally, what is damning to petitioners cause is the fact that the MTCC had already withdrawn
the two Informations filed against respondents. As previously stated, the MTCC suspended the
proceedings before it in view of the petition filed by the respondents with the CA. In
Ledesma,37 this Court stated that such deferment or suspension, however, does not signify that
the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw
the information or to dismiss the case.38 Since the Informations for perjury had already been
filed in the MTCC, any subsequent action must be addressed to the said courts discretion.
In the case at bar, the CA found that the Regional State Prosecutor acted with grave abuse of
discretion when he ordered the City Prosecutor to file the Informations for perjury against
respondents. It was because of the CA Decision that the City Prosecutor eventually filed two
Motions for Leave to Withdraw Informations39 with the MTCC. On August 30, 2005, the MTCC
issued an Order40 granting the motion, to wit:
Acting on the Motion for Leave to Withdraw Informations filed by the prosecution, through 2nd
Asst. City Prosecutor Arlene Catherine A. Dato, and finding it to be impressed with merit, the
same is hereby Granted.
Accordingly, the information against accused Janet Florencio in the above-entitled case is
hereby Withdrawn.
SO ORDERED.41
The court is the best and sole judge of what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence. Thus, the court may deny or grant a
motion to withdraw an information, not out of subservience to the (Special) Prosecutor, but in
faithful exercise of judicial discretion and prerogative.42The dismissal of the two informations
against respondents were subject to the MTCCs jurisdiction and discretion in view of the

circumstances of the case at bar. Such dismissal ultimately renders the case moot and
academic.
WHEREFORE, premises considered, the petition is DENIED. The July 28, 2005 Decision and
the February 7, 2006 Resolution of the Court of Appeals, in CA-G.R. SP No. 86521,
are AFFIRMED.
SO ORDERED.

Tan Uy vs. OMB

We resolve in this Decision the petition filed by petitioner Victor Jose Tan Uy
(the petitioner) under Rule 65 of the Revised Rules of Court to assail the interrelated
Orders dated 13 September 2002[1] and 16 October 2002[2] of the respondent
Office of the Ombudsman (the Ombudsman) in OMB-0-00-1720[3] and OMB-0-001756[4] for grave abuse of discretion and/or lack or excess of jurisdiction.

THE ANTECEDENTS

The Ombudsman filed on 4 April 2001 with the Sandiganbayan an

Information[5] charging former President Joseph Ejercito Estrada, together with Jose
Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, John Does and Jane Does, with the crime of Plunder, defined and penalized
under Republic Act (R.A.) No. 7080, as amended by Section 12 of R.A. No. 7659. The
Ombudsman moved to amend the Information twice - initially, to introduce changes
in the Information (including a change in the appellation of the accused Eleuterio
Tan, Eleuterio Ramos Tan or Mr. Uy to John Doe a.k.a. as Eleuterio Tan or Eleuterio
Ramos Tan or Mr. Uy), and thereafter, to include Jaime C. Dichaves as accused; the
Sandiganbayan granted the motions.[6] The pertinent portions of the Amended
Information[7] read:

That during the period from June, 1998 to January, 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then
a public officer, being then the president of the Republic of the Philippines, by
himself and/or in connivance/conspiracy with his co-accused, who are members of
his family, relatives by affinity or consanguinity, business associates, subordinates
and/or other persons, by taking undue advantage of his official position, authority,
relationship, connection or influence, did then and there willfully, unlawfully and
criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten

wealth in the aggregate amount or total value of Four Billion Ninety-seven Million
Eight Hundred Four Thousand One Hundred Seventy-three Pesos and Seventeen
Centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or
themselves at the expense and to the damage of the Pilipino people and the
Republic of the Philippines, through any or a combination or a series of overt or
criminal acts, or similar schemes or means, described as follows:

(a) by receiving or collecting, directly or indirectly, on several instances, money in

the aggregate amount of Five Hundred Forty-five Million Pesos (P545,000,000.00),
more or less, from illegal gambling in the form of gift, share, percentage, kickback
or any form of pecuniary benefit, by himself and/or in connivance with co-accused
Charlie Atong Ang, Jose Jinggoy Estrada, Yolanda T. Ricaforte and Edward Serapio
and John Does and Jane Does, in consideration of toleration or protection of illegal
gambling;

(b) by diverting, receiving, misappropriating, converting OR misusing directly, or

indirectly for his or their personal gain and benefit, public funds in the amount of
ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less,
representing a portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco
excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY
HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro,
John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a.
Delia Rajas AND OTHER JOHN DOES AND JANE DOES; [underscores supplied]

(c) by directing, ordering and compelling, for his personal gain and benefit, the
Government Service Insurance System (GSIS) to purchase 351,878,000 shares of
stocks, more or less, and the Social Security System (SSS) 329,855,000 shares of
stocks, more or less, of the Belle Corporation in the amount of more or less One
Billion One Hundred Two Million Nine Hundred Sixty-five Thousand Six Hundred
Seven Pesos and Fifty Centavos (P1,102,965,607.50) and more or less Seven
Hundred Forty-four Million Six Hundred Twelve Thousand and Four Hundred Fifty
Pesos (P744,612,450.00), respectively or a total of more or less One Billion Eight
Hundred Forty-seven Million Five Hundred Seventy-eight Thousand Fifty-seven Pesos
and Fifty Centavos (P1,847,578,057.50); and by collecting or receiving, directly or
indirectly, by himself and/or in connivance with Jaime Dichaves, John Does and Jane
Does, commissions or percentages by reason of said purchases of shares of stock in
the amount of One Hundred Eighty-nine Million Seven Hundred Thousand Pesos
(P189,700,000.00) more or less, from the Belle Corporation which became part of
the deposit in the Equitable-PCI Bank under the account name Jose Velarde;

(d) by unjustly enriching himself from commissions, gifts, shares, percentages,

kickbacks, or any form of pecuniary benefits, in connivance with Jaime C. Dichaves,
John Does and Jane Does in the amount of more or less, Three Billion Two Hundred
Thirty-three Million One Hundred Four Thousand One Hundred Seventy-three Pesos

and Seventeen Centavos (P3,233,104,173.17) and depositing the same under his
account name Jose Velarde at the Equitable-PCI Bank.

CONTRARY TO LAW.

The case, which originated from OMB-0-00-1720 (entitled National Bureau of

Investigation v. Luis Chavit Singson, et. al.) and OMB-0-00-1756 (entitled Romeo T.
Capulong, et. al., v. Joseph Ejercito Estrada, et. al.), was docketed in the
Sandiganbayan as Criminal (Crim.) Case No. 26558.

In the course of the proceedings, the Ombudsman filed before the Sandiganbayan
an Omnibus Motion dated 8 January 2002[8] seeking, among others, the issuance of
a warrant of arrest against Victor Jose Tan Uy alias Eleuterio Tan, Eleuterio Ramos
Tan or Mr. Uy. The Ombudsman alleged that no warrant of arrest had been issued
against the accused John Doe who was designated in the Information as Eleuterio
Tan, Eleuterio Ramos Tan or Mr. Uy; and that, in order not to frustrate the ends of
justice, a warrant of arrest should issue against him after he had been identified to
be also using the name Victor Jose Tan Uy with address at 2041 M. J. Cuenco
Avenue, Cebu City. Allegedly, a positive identification had been made through
photographs, as early as the Senate Impeachment Trial against former President
Joseph Ejercito Estrada, that John Doe a.k.a. Eleuterio Tan, Eleuterio Ramos Tan or
Mr. Uy and VICTOR JOSE TAN UY are one and the same person.

To support this motion, the Ombudsman attached: (1) copies of the photographs
identified at the Senate Impeachment Trial; and (2) the Sworn Statement of Ma.
Caridad Manahan-Rodenas (the Rodenas Sworn Statement) dated 26 June
2001 executed before Atty. Maria Oliva Elena A. Roxas of the Fact Finding and
Intelligence Bureau of the Office of the Ombudsman (FFIB). [For purposes of this
Decision, these are collectively referred to as the identification documents.]

The Ombudsman further filed a Manifestation and Motion dated 5 March

2002[9] asking for the manual insertion in the Amended Information of the name
VICTOR JOSE TAN UY; it relied on Section 7, Article 110 of the Revised Rules of
Criminal Procedure, which provides:

SEC. 7. Name of the accused. The complaint or information must state the name
and surname of the accused or any appellation or nickname by which he has been
or is known. If his name cannot be ascertained, he must be described under a
fictitious name with a statement that his true name is unknown.

If the true name of the accused is thereafter disclosed by him or appears in some
other manner to the court, such true name shall be inserted in the complaint or
information and record.

The
petitioners
response
was
a Petition
to
Conduct
Preliminary
Investigation[10] filed with the Ombudsman. The petitioner argued that: (1) he was
not subjected to a preliminary investigation or to any previous inquiry to determine
the existence of probable cause against him for the crime of plunder or any other
offense, as: (a) he was not included as respondent in either of the two Ombudsman
cases bases of the criminal proceeding; (b) neither his name nor his address at No.
2041 M.J. Cuenco Avenue, Cebu City was mentioned at any stage of the preliminary
investigation conducted in the criminal cases; (c) the preliminary investigation in
the cases that led to the filing of Crim. Case No. 26558 was conducted without
notice to him and without his participation; (d) he was not served any subpoena,
whether at his address at No. 2041 M.J. Cuenco Avenue, Cebu City or at any other
address, for the purpose of informing him of any complaint against him for plunder
or any other offense and for the purpose of directing him to file his counter-affidavit;
and (2) dictates of basic fairness and due process of law require that petitioner be
given the opportunity to avail himself of the right to a preliminary investigation
since the offense involved is non-bailable in character.

The petitioner additionally alleged that he filed a complaint with

the Regional Trial Court of Cebu City docketed as CEB-25990 against a certain
Eleuterio Tan for maligning him by using his picture, address, and other personal
circumstances without his consent or authority, which acts led to his alleged
involvement in the tobacco excise tax scandal.[11]He also claimed that he
personally visited then Senate President Aquilino Pimentel at the height of the
impeachment trial to dispute his identification as Eleuterio Tan; he then expressed
his willingness to testify before the Impeachment Court and subsequently wrote
Senator Pimentel a letter about these concerns.[12] He claimed further that he
submitted the signatures appearing on the signature cards supposedly signed by
Eleuterio Tan and the two (2) company identification cards supposedly presented by
the person who opened the Land Bank account for examination by a handwriting
expert; the result of the handwriting examination disclosed that the signatures were
not his.[13]

In a parallel Manifestation and Motion[14] dated 11 April 2002 filed with

the Sandiganbayan, the petitioner asked for the suspension of the criminal
proceedings insofar as he is concerned; he likewise moved for a preliminary
investigation.

The Ombudsman opposed[15] the petitioners Manifestation and Motion with a

refutation of the petitioners various claims. Among others, it claimed that it served,
in the preliminary investigation it conducted, the subpoena at the purported
address
of
Eleuterio
Tan,
Eleuterio
Ramos
Tan
or
Mr.
Uy
at
Bagbaguin, Valenzuela City as indicated in the complaint-affidavits. It posited that it
was the petitioners fault that his true name was not ascertained, the petitioner
having made clever moves to make it difficult to identify him with his nefarious
deeds. It also argued that the petitioner could not ask for any affirmative relief from
the Sandiganbayan which had not acquired jurisdiction over the petitioners person.

The petitioner reiterated in his Reply to Opposition[16] (filed with the

Sandiganbayan) the points he raised before the Ombudsman. He additionally
stressed that: (1) the fundamental issue is whether or not a preliminary
investigation was conducted with respect to him; as the records show, he was never
subjected to any preliminary investigation; (2) he was never given by the
prosecution the opportunity to prove in any preliminary investigation that he is not
Eleuterio Tan; had he been given such opportunity, petitioner would have shown
that he wasted no time and took immediate steps to establish his innocence shortly
after the illegal use and submission of his photo and usurpation of his identity
surfaced at the impeachment proceedings; (3) he timely invoked his right to a
preliminary investigation, as motions or petitions for the conduct of preliminary
investigation may be entertained by the Sandiganbayan even before the movant or
petitioner is brought under its jurisdiction under the rule that any objection to a
warrant of arrest or procedure in the acquisition by the court of jurisdiction over the
person of the accused must be made before plea; (4) while the invalidity of the
preliminary investigation does not affect the jurisdiction of the Sandiganbayan, it
should however suspend the proceedings and remand the case for the holding of a
proper preliminary investigation; and (5) a preliminary investigation is imperative
because the offense involved is non-bailable.

The Ombudsman denied in an Order dated 10 May 2002[17] the petition for the
conduct of a preliminary investigation. It rejected the petitioners claims, reasoning
out that the petitioners requested preliminary investigation had long been
terminated and the resulting case had already been filed with the Sandiganbayan in
accordance with the Rules of Criminal Procedure; hence, the petitioners remedy is
to ventilate the issues with the Sandiganbayan.

The Sandiganbayan, on the other hand, granted in a Resolution dated 19 June

2002[18] the petitioners motion and directed the Ombudsman to conduct a
preliminary investigation with respect to the petitioner. It also held in abeyance until
after the conclusion of this preliminary investigation action on the Ombudsmans
motion to amend the Information to insert the petitioners name and to issue a
warrant for his arrest.
In compliance with the Sandiganbayan Resolution, the Ombudsman issued
an Order[19] requiring the petitioner to file his counter-affidavit, the affidavits of his

witnesses, and other supporting documents. Attached to the Ombudsmans Order

were the Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-0-001720. The petitioner filed his counter-affidavit,[20] pertinent portions of which read:

2. With respect to the Complaint-Affidavit in OMB-0001720, it may be noted that the

same was originally filed with the Department of Justice as I.S. No. 2000-1829, with
the National Bureau of Investigation as complainant and the following as
respondents, namely: (1) Luis Chavit Singson, (2) Deogracias Victor B. Savellano, (3)
Carolyn M. Pilar, (4) Antonio A. Gundran, (5) Dr. Ernie A. Mendoza II, Ph. D., (6)
Leonila Tadena, (7) Estrella Mercurio, (8) Dionisia Pizarro, (9) Cornelio Almazan, (10)
Erlita Q. Arce, (11) Maricar Paz, (12) Marina Atendido, (13) Nuccio Saverio, (14)
Alma Aligato Alfaro, (15) Eleuterio Tan or Eleuterio Ramos Tan, and (16) Delia
Rajas. (I.S. No. 2000-1829 was thereafter referred to the Office of the Ombudsman
as per the 1st indorsement of Secretary Artemio G. Tuquero dated 14 December
2000).

2.1. As may easily be gleaned from the documents served upon me with the 08
August 2002 Order, I am not among the respondents named or included in
either I.S. No. 2000-1829 orOMB-0-00-1720. Neither has there been any mention of
my name in the Complaint-Letter dated 14 November 2000 of Carlos Caacbay,
Deputy Director for Special Investigation Services or in any of its supporting
documents.

2.2. Neither has any allegation been made in the Complaint-Letter dated 14
November 2000 of Carlos S. Caacbay, Deputy Director for Special Investigation
Services, or in any of its supporting documents that I have been identified as being
among the named respondents therein.

2.3. Moreover, there has been no allegation linking me to any criminal act for any of
the offenses charged or any other criminal offense.

3. With respect to the Complaint-Affidavit in OMB-0-00-1756 filed by Romeo T.

Capulong, Leonard de Vera and Dennis B. Funa, the only respondents named are:
(1) (former) President Joseph E. Estrada, (2) (former) First Lady Luisa Estrada, (3)
Jinggoy Estrada, (4) Charlie Ang, (5) Delia Rajas, (6) Eleuterio Tan, and (7) Alma
Alfaro.

3.1. As may easily be gleaned from the documents served upon me with the 08
August 2002 Order, I am not among the respondents named or included in OMB-000-1756. Neither has there been any mention of my name in the Complaint-Affidavit
dated 28 November 2000 or in any of its supporting documents marked Annexes A-

1 to A-5 (consisting of 523 pages, more or less, of the transcripts of stenographic

notes of Gov. Luis Singsons testimony before the Senate Blue Ribbon Committee
and the Senate Committee on Justice) and Annex B (the 25 September 2000
Affidavit of Gov. Luis Singson).

3.2 Neither has any allegation been made in the Complaint-Affidavit dated 28
November 2000 nor any of its supporting documents that I have been identified as
being among the named respondents therein.

3.3. Moreover, there has been no allegation linking me to any criminal act for any of
the offenses charged or any other criminal offense.

4. In view of the foregoing, it is submitted that the instant cases ought to be

dismissed with respect to me, there being no factual allegation or basis in the
instant cases to warrant any further action thereon. The instant cases should thus
be dismissed outright for want of palpable merit.

The Ombudsman thereafter issued an order requiring the attendance of Rodenas

and the petitioner in a clarificatory hearing.[21] The petitioner filed a Manifestation
and Motion,[22] arguing that considering the thrust of his counter-affidavit, there is
no need for a hearing because there is nothing that would require clarification as to
matters stated in his counter-affidavit and there is also no point for a clarificatory
hearing on the complaints-affidavits given the patent want of probable cause as
against him. The petitioner did not personally attend the clarificatory
hearing. Rodenas did not also show up. The petitioner then filed a Motion to
Resolve[23] the case.

At this point, the Ombudsman issued the first of the orders assailed in the present
petition; it found probable cause to charge the petitioner before the
Sandiganbayan. The basis for the finding runs:
It has to be emphasized that during the investigation conducted by the Fact-Finding
and Intelligence Bureau (FFIB), this Office, and referred to on page 2 of the
Resolution of the Sandiganbayan dated June 19, 2002, granting the motion for
preliminary investigation of respondent Victor Jose Tan Uy, Ma. Caridad ManahanRodenas of the Land Bank of thePhilippines identified the picture bearing the name
Victor Jose Tan Uy as Eleuterio Tan who presented to her two identification cards
(IDs), which were found to exactly match the picture of the said respondent with his
LTO license. Verily, the identification made by Rodenas based on pertinent

documents which respondent presented when he opened the account at Land Bank
remains credible, and that Victor Jose Tan Uy was the same person who appeared
and introduced himself as Eleuterio Tan or Eleuterio Ramos Tan to Ma. Caridad A.
Manahan-Rodenas of the Land Bank, thereby establishing his true identity. It is
therefore, clear that the person mentioned in OMB-0-00-1720 and OMB-0-00-1756,
during the preliminary investigation thereof, as Eleuterio Tan or Eleuterio Ramos Tan
is no other than Victor Jose Tan Uy. [underscoring supplied]

Further, a perusal of the allegations in respondents counter-affidavit [sic] the same

has not proffered any material evidence to contradict the allegations that Eleuterio
Tan or Eleuterio Ramos Tan refers to Victor Jose Tan Uy as one and the same
person. What are contained in the counter-affidavit are mere general denials
without defenses on why respondent is distinct and different from Eleuterio Tan. In
all likelihood, respondent used the name of Eleuterio Tan or Eleuterio Ramos Tan in
making his transaction with Land Bank to hide his real identity. Notwithstanding the
concealment, there were available pieces of evidence unearthing respondents true
identity thus, arriving to the firm conclusion that Eleuterio Tan or Eleuterio Ramos
Tan is the same person as herein respondent Victor Jose Tan Uy.[24]

The petitioner moved to reconsider the Ombudsmans Order,[25] but the latter
denied the motion in the second order assailed in this petition.[26] The second
assailed order in part reads:
After an assiduous evaluation of the grounds and arguments raised by the movant
in his motion, we find no cogent reason to disturb the resolution and order finding
probable cause to indict respondent Victor Jose Tan Uy.

xxx

It has to be emphasized that the fact of identifying Victor Jose Tan Uy as one and the
same person as Eleuterio Tan or Eleuterio Ramos Tan by Landbank employee, Ma.
Caridad Rodenas, has already formed part of the preliminary investigation
conducted by the Office of the Ombudsman. In the said preliminary investigation,
Victor Jose Tan Uy was ordered to appear in a clarificatory conference to confront
Rodenas. But Uy did not appear. Instead, his counsel submitted a manifestation to
dispense with the clarificatory hearing and submit the case for resolution.The
scheduled conference could have provided opportunity for Victor Jose Tan Uy to
dispute the findings that Eleuterio Tan or Eleuterio Ramos Tan is one and the same
person. Instead, per information and admission of counsel, accused Victor Jose Tan
Uy was in the United States. As to the exact date of departure, counsel refused to
divulge. The skill and cleverness of accused in playing hide and seek is putting a
heavy toll in the proper administration of justice.

Further, Victor Jose Tan Uy did not submit any evidence, documentary or otherwise,
that would lead the Office of the Ombudsman to believe that Victor Jose Tan Uy is
different from Eleuterio Tan or Eleuterio Ramos Tan.

Moreover, previously before the Honorable Court, the accused-movant, through

counsel, was already confronted with pieces of evidence. He was identified through
an I.D. with computer-generated photograph marked as Exhibit J by previous
prosecution witnesses: Jemis Singson, Atty. David Yap and Ilonor Madrid as the same
person Victor Jose Tan Uy.

Due process cannot be compartmentalized. The court proceedings participated in

by the accused-movant form part and parcel of such due process, in the same
manner that the further preliminary investigation is inseparable from the said court
proceedings. [emphasis supplied]

Finally, if only to highlight the redundant opportunity given to the accused-movant

to controvert the pieces of evidence against him, in the hearing on the Motion to
Expunge and Opposition last 9 October 2002, the accused-movants counsel was
directly confronted with the same ID that identified his client as the very same
person using the pseudonym Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. However,
again the accused-movant through counsel literally refused to admit or deny if the
person depicted in the I. D. is his client Victor Jose Tan Uy. This indicates the futility
of pursuing another round of such repetitious opportunity to controvert the said
evidence.

THE PETITION AND THE PARTIES SUBMISSIONS

Faced with the Ombudsmans rulings, the petitioner filed the present petition based
on grounds that are rehashes of the issues already ventilated below. For clarity, the
petitioner alleged grave abuse of discretion in the Ombudsmans finding of probable
cause on the grounds that:

(a) he was not among the respondents named or included in either OMB-0-001720 or OMB-0-00-1756; neither has there been any mention of his name in the
respective complaint-affidavits or in any of their supporting documents; neither has
any allegation been made in the respective complaint-affidavits or in any of their
supporting documents that he had been identified as being among the named
respondents; and there has been no allegation linking him to any criminal act for
any of the offenses charged or any other criminal offense; and

(b) the Ombudsman relied on evidence and findings that were never part of the
complaints-affidavits or their supporting documents served upon the petitioner and
were never adduced or presented in the course of the preliminary investigation
conducted with respect to the petitioner.

The petitioners supporting arguments essentially center on the irregularity of the

Sandiganbayan-ordered preliminary investigation and the worth and efficacy of the
evidence the complainants presented with respect to his identification as Eleuterio
Tan, Eleuterio Ramos Tan or Mr. Uy. He questions the regularity of the preliminary
investigation for having been attended by shortcuts and for being a sham
proceeding that violates his right to due process. Specifically, he claims that the
duty of the Ombudsman is to determine the existence of probable cause based on
the evidence presented, not to fill up the deficiencies of the complaint, nor to
remedy its weaknesses. He objects to the use of the FFIB investigation results to
support the finding of probable cause since these investigation results were never
presented at the preliminary investigation of OMB-0-00-1720 and OMB-0-00-1756,
and reliance thereon violates his due process rights. He adds that the FFIB was
never a complainant heard in either of these cases. He emphasizes that the
Rodenas sworn statement in the FFIB investigation identifying him as Eleuterio Tan
is a mere scrap of paper that does not constitute evidence in the preliminary
investigation since it was never presented therein, and that the burden of proving at
the preliminary investigation that he is Eleuterio Tan rests with the complainants.
The Ombudsman counters all these with the position that the first preliminary
investigation, conducted prior to the filing of the Sandiganbayan charges, was
conducted fully in accordance with the rules and thus carried no
infirmities. Specifically, the order for the petitioner to file his counter- and
supporting affidavits was regular because it was issued in his assumed names and
was sent to the addresses stated in the complaint as required by the procedural
rules on preliminary investigations.

The respondent posits further that the issue of the validity of the first preliminary
investigation with respect to the petitioner has been rendered academic by the
subsequent reinvestigation that the Sandiganbayan ordered. At this subsequent
investigation, the complaint-affidavits were duly furnished the petitioner who merely
alleged general denials in the counter-affidavit he filed. The petitioner failed to
attend the clarificatory hearing where he could have controverted the identification
made by Rodenas in the FFIB investigation; he likewise had at least seven
opportunities in the totality of the proceedings to controvert his identification as
Eleuterio Tan,[27] but failed to avail himself of any of these opportunities. These
opportunities were:

First, when he received copies of the identification documents attached to the

Ombudmans Omnibus Motion (dated 8 January 2002) and Manifestation and Motion

(dated 5 March 2002), he then filed his petition to conduct a preliminary

investigation with the Ombudsman;

Second, when he filed his Manifestation and Motion (dated 11 April 2002) with the
Sandiganbayan wherein he refused to directly controvert the identification issues,
although he quoted the Ombudsmans previous motions;

Third, when the petitioner filed his Reply to Opposition to the Ombudsmans
Manifestation and Motion with the Sandiganbayan, his averments therein were in
the nature of denials that met head on the positive identification made by Rodenas;
thus, the identification issues were joined and it then became the petitioners duty to
confront the evidence of identification;

Fourth, when the Sandiganbayan ordered the preliminary investigation, this

proceeding presented an opportunity to confront the identification documents, but
he did not;

Fifth, when a clarificatory hearing was called during the Sandiganbayan-ordered

preliminary investigation, the hearing presented another opportunity, but the
petitioners counsel filed a manifestation that his client did not wish to participate;

Sixth, when the petitioner filed his motion for reconsideration of the first assailed
order in the present petition, he could have controverted the identification
documentstherein, but he did not; and

Seventh, at the hearing of an incident before the Sandiganbayan, when the

petitioners counsel was asked whether the man in the photograph shown him was
his client, he refused to answer the question although he could have simply denied
it.

The respondent Ombudsman further argues that fault can be imputed only to the
petitioner who demands equity but has not come to Court with clean hands; through
various machinations and by his own fault, he has avoided confronting the evidence
of his identification. The Ombudsman stresses finally that its factual finding of the
existence of probable cause against the petitioner has full basis in evidence and,
being factual, should be accorded respect, if not finality.

OUR RULING

We find the petition impressed with merit.

We clarify at the outset that the present petition is filed under Section 1, Rule 65 of
the Revised Rules of Court whose scope of review is limited to the question: was the
order by the tribunal, board or officer exercising judicial or quasi judicial functions
rendered without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack of or excess of jurisdiction? The grave abuse of discretion that the
petitioner alleges in this case is defined by jurisprudence to be a capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an]
exercise of power in an arbitrary and despotic manner by reason of passion or
personal hostility, or an exercise of judgment so patent and gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or
to act in a manner not at all in contemplation of law.[28]

At the core of the present controversy is the regularity, in the context of accepted
standards of due process, of the Ombudsmans conduct of the Sandiganbayanordered preliminary investigation. The petition must fail if the Ombudsman
complied with the basic requirements of due process and the prevailing rules and
jurisprudence on preliminary investigation.

A preliminary investigation is held before an accused is placed on trial to secure the

innocent against hasty, malicious, and oppressive prosecution; to protect him from
an open and public accusation of a crime, as well as from the trouble, expenses,
and anxiety of a public trial. It is also intended to protect the state from having to
conduct useless and expensive trials. While the right is statutory rather than
constitutional, it is a component of due process in administering criminal
justice. The right to have a preliminary investigation conducted before being bound
for trial and before being exposed to the risk of incarceration and penalty is not a
mere formal or technical right; it is a substantive right. To deny the accused's claim
to a preliminary investigation is to deprive him of the full measure of his right to due
process.[29]

Thus, as in a court proceeding (albeit with appropriate adjustments because it is

essentially still an administrative proceeding in which the prosecutor or
investigating officer is a quasi-judicial officer by the nature of his functions), a
preliminary investigation is subject to the requirements of both substantive and
procedural due process. This view may be less strict in its formulation than what we
held in Cojuangco, Jr. v. PCGG, et al.[30] when we said:

It must be undertaken in accordance with the procedure provided in Section 3, Rule

112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in

order to assure that a person undergoing such preliminary investigation will be

afforded due process.

xxx

Although such 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, a 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 then
been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial
when there is opportunity to be heard and for the production and weighing of
evidence, and a decision is rendered thereon.[31]

but we commonly recognize the need for the observance of due process. We
likewise fully agree with Cojuangco in terms of the level of scrutiny that must be
made we do not expect the rigorous standards of a criminal trial, but [s]ufficient
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.
In light of the due process requirement, the standards that at the very least assume
great materiality and significance are those enunciated in the leading case of Ang
Tibay v. Court of Industrial Relations.[32] This case instructively tells us - in defining
the basic due process safeguards in administrative proceedings - that the
decision (by an administrative body) must be rendered on the evidence presented
at the hearing, or at least contained in the record and disclosed to the parties
affected; only by confining the administrative tribunal to the evidence disclosed to
the parties, can the latter be protected in their right to know and meet the case
against them; it should not, however, detract from the tribunals duty to actively see
that the law is enforced, and for that purpose, to use the authorized legal methods
of securing evidence and informing itself of facts material and relevant to the
controversy.[33]

Mindful of these considerations, we hold that the petitioners right to due process
has been violated.

We firstly note that the question of the petitioners entitlement to a preliminary

investigation apart from the earlier preliminary investigation conducted by the
Ombudsman in OMB-0-00-1720 and OMB-0-00-1756 has been fully settled by the

Sandiganbayan Resolution of June 19, 2002. None of the parties questioned this
ruling which, in its material points, provides:

1. The preliminary investigation conducted in OMB-0-00-1720 and OMB-0-00-1756

which led to the filing of the above-entitled case never mentioned the name of
herein movant Jose Victor Tan Uy. Instead, the preliminary investigation involves one
Eleuterio Tan a. k. a. Eleuterio Ramos Tan with address at Brgy.
Bagbaguin, Valenzuela City, Metro Manila or on [sic] No. 20 Pilar St. Mandaluyong
City. As declared by the prosecution itself, Barangay Chairman Jose S. Gregorio, Jr. of
Brgy. Bagbaguin, Valenzuela, Metro Manila certified that Eleuterio Tan a.k.a.
Eleuterio Ramos Tan is non-existent within the jurisdiction of their barangay. While
the prosecution asserted that Eleuterio Tan and Eleuterio Ramos Tan are the aliases
of herein movant, we agree in the latters observation that the one charged before
the Office of the Ombudsman was Eleuterio Tan alias Eleuterio Ramos Tan which
indicates that the real name of the person charged is Eleuterio Tan, not an alias only
and his alias is Eleuterio Ramos Tan. We find merit in the contention of the movant
that there was no showing of any effort on the part of the Office of Ombudsman to
determine whether the names Eleuterio Tan and Eleuterio Ramos Tan are mere
aliases of an unidentified person. Further, as aptly observed by the movant, while
Eleuterio Tan has other [sic] address at No. 20 Pilar St. Mandaluyong City, there was
no showing that subpoena or copies of the complaints-affidavits were sent at the
said address and no explanation was submitted by the prosecution for such
omission. [italics supplied]

2. The claim of the prosecution that movants address at No. 2041 M. J. Cuenco
Avenue, Cebu City was not indicated because the said address was not yet
discovered by the investigation panel during the preliminary investigation was
rebutted by the movant. Movant was able to show that his address at Cebu City was
made known during the hearing before the Impeachment Court onDecember 22,
2000. Yet, despite knowledge of the movants address, no subpoena or copies of the
complaints-affidavits had been served upon him at said address by the
prosecution. We understand the clamor of herein movant that while the prosecution
did not give him the opportunity to present his side, it already formed a conclusion
that he and Eleuterio Tan are one and the same person. [italics supplied]

3. Movant, after learning from media reports that he was being identified as
Eleuterio Tan, immediately took steps to disprove the same, as follows:
a. On December 29, 2000, he filed a complaint before the RTC of Cebu City,
entitled Victor Jose Tan Uy, v. Eleuterio Tan, docketed as CEB-25990 x x x

b. Movant, through counsel, wrote a letter dated January 5, 2001 to Senate

President Aquillino Pimentel, disputing the claim that he is Eleuterio Tan and

expressed his willingness to testify at the Senate Impeachment Proceeding to clear

his name as to the imputation that he is Eleuterio Tan (Annex E, Reply)

c. Movant, through counsel, sent a letter dated January 8, 2001 to the Regional
Chief, PNP Crime Laboratory, Cebu City, requesting for examination of the
handwriting appearing on the signature cards as supposedly signed by Eleuterio Tan
and on the two (2) identification cards (IDs) from two (2) different companies
supposedly presented to the Land Bank of the Philippines by the person who
opened the account (Annex F, Reply). As shown in the Questioned Document Report
of Romeo Varona, handwriting expert who conducted the examination, the
questioned signatures/handwritings of Mr. Jose [sic] Victor Jose Tan Uy appearing in
the signature cards of Land Bank of the Philippines, ET Enterprises Inc., I. D. San
Juan, Metro Manila and Solid Builders Center Mandaluyong City I. D. No, 19-0198
with their corresponding date marked Q-1 and Q-8 inclusive and the standard
signatures/handwritings submitted for comparison marked S-1 to S-49 inclusive
were written by two different persons (Annex G, Reply). Relative hereto, Mr. Varona
executed an affidavit dated April 16, 2002 (Annex B, Reply). [34]

We quote this ruling as it contains the premises that justified the holding of the
Sandiganbayan-ordered preliminary investigation specifically for the petitioner. To
restate the Sandiganbayan reasoning in simple terms: the petitioner was never
identified in the previous preliminary investigation to be the person identified by
assumed names or aliases in the supporting complaint-affidavits; hence, a new
preliminary investigation should be conducted to identify him as the person who,
using the aliases Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, opened and withdrew
from the Landbank account in the course of a series of acts collectively constituting
the crime of plunder.

The critical evidence linking the petitioner to the plunder case is his identification
through the identification documents. This notwithstanding and quite inexplicably,
theidentification documents despite the fatal infirmity the Sandiganbayan found in
the first preliminary investigation - were once again not given to the petitioner in
the subsequent Sandiganbayan-ordered preliminary investigation to inform him of
his alleged links to the charges under the complaint-affidavits.[35]

How and why this happened was never satisfactorily explained in the parties
various submissions. Based on the records of what actually transpired at the
Sandiganbayan-ordered preliminary investigation, we can glean the Ombudsmans
intent to either confront and identify the petitioner through Ma. Caridad ManahanRodenas, or at least to introduce the Rodenas sworn statement and

the identification documents into the preliminary investigation records through her
own personal appearance. For these purposes, the Ombudsman specifically called
the petitioner and Rodenas to a clarificatory hearing that unfortunately did not
result in either of these possibilities; the petitioner did not personally attend the
hearing and Rodenas herself failed to show up. At the same time, the Ombudsman
was forced, upon the insistence of the petitioners counsel, to consider the inquiry
submitted for resolution based on the records then existing.[36] Thus, the
Ombudsman still failed to establish in the Sandiganbayan-ordered preliminary
investigation the direct link between the individual identified by aliases and the
petitioner.

Unfortunately for the Ombudsman, the holding of the clarificatory hearing, in which
Rodenas and the petitioner were the invitees, is replete with implications touching
on the existence of probable cause at that stage of the proceedings. To be sure, the
prosecutor (Ombudsman) cannot be faulted for calling the clarificatory hearing as it
is within his authority to do so.[37] As a rule, however, no clarificatory hearing is
necessary if the evidence on record already shows the existence of probable cause;
conversely, a clarificatory hearing is necessary to establish the probable cause that
up to the time of the clarificatory hearing has not been shown. This implication
becomes unavoidable for the present case, given the reason for the
Sandiganbayans order to conduct another preliminary investigation for the
petitioner, and in light of the evidence so far then presented which, as in the first
preliminary investigation, did not link the petitioner to the assumed names or
aliases appearing in the Information.

Under the above circumstances, the respondent Ombudsman could only fall back on
the simple response that due process cannot be compartmentalized; the court
proceedings participated in by the accused-movant (the petitioner) form part and
parcel of such due process in the same manner that the further preliminary
investigation is inseparable from the said court proceedings.[38] We do not however
find this response sufficiently compelling to save the day for the respondent. That
the petitioner may have actual prior knowledge of the identification documents from
proceedings elsewhere is not a consideration sufficiently material to affect our
conclusion. Reasonable opportunity to controvert evidence and ventilate ones cause
in a proceeding requires full knowledge of the relevant and material facts specific to
that proceeding. One cannot be expected to respond to collateral allegations or
assertions made, or be bound by developments that transpired, in some other
different although related proceedings, except perhaps under situations where facts
are rendered conclusive by reason of judgments between the same parties[39] - a
situation that does not obtain in the present case. Otherwise, surprise which is
anathema to due process may result together with the consequent loss of adequate
opportunity to ventilate ones case and be heard. Following Ang Tibay, a decision in
a proceeding must be rendered based on the evidence presented at the hearing (of
the proceeding), or at least contained in the record (of the proceeding)
and disclosed to the parties affected (during or at the proceeding).

Thus, we cannot agree with the Ombudsmans position that the petitioner should
controvert the identification documents because they already form part of the
records of the preliminary investigation, having been introduced in various incidents
of Crim. Case No. 26558 then pending with the Sandiganbayan. The rule closest to a
definition of the inter-relationship between records of a preliminary investigation
and the criminal case to which it relates is Section 8 (b), Rule 112 of the Revised
Rules of Court which provides thatthe record of the preliminary investigation,
whether conducted by a judge or a prosecutor, shall not form part of the record of
the case; the court, on its own initiative or on motion of any party, may order the
production of the record or any of its parts when necessary in the resolution of the
case or any incident therein, or when it is introduced as an evidence in the case by
the requesting party. This rule, however, relates to the use of preliminary
investigation records in the criminal case; no specific provision in the Rules exists
regarding the reverse situation. We are thus guided in this regard by the basic due
process requirement that the right to know and to meet a case requires that a
person be fully informed of the pertinent and material facts unique to the inquiry to
which he is called as a party respondent. Under this requirement, reasonable
opportunity to contest evidence as critical as the identification documents should
have been given the petitioner at the Sandiganbayan-ordered preliminary
investigation as part of the facts he must controvert; otherwise, there is nothing to
controvert as the burden of evidence lies with the one who asserts that a probable
cause exists. The Ombudsmans failure in this regard tainted its findings of probable
cause with grave abuse of discretion that effectively nullifies them. We cannot avoid
this conclusion under the constitutional truism that 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.[40]

WHEREFORE,
premises
considered,
we
hereby GRANT the
petition
and
accordingly ANNUL the Ombudsmans interrelated Orders dated 13 September
2002 and 16 October 2002 in OMB-0-00-1720 and OMB-0-00-1756.

SO ORDERED.
THIRD DIVISION
[G.R. No. 130191. April 27, 1998]
RODRIGO R. DUTERTE and BENJAMIN C. DE
HONORABLE SANDIGANBAYAN, respondent.
DECISION
KAPUNAN, J.:

GUZMAN, petitioners,

vs. THE

The right to preliminary investigation is not a mere formal right, it is a substantive right. To
deny the accused of such right would be to deprive him of due process.
In this special civil action for certiorari with preliminary injunction, petitioners seek to
aside the Order of the Sandiganbayan dated 27 June 1997 denying the Motion to Quash
information filed against them for violating Sec. 3(g) of R.A. No. 3019, otherwise known as
Anti-Graft And Corrupt Practices Act. Petitioners similarly impugn the Resolution of
Sandiganbayan dated 5 August 1997 which denied their Motion for Reconsideration thereof.

set
the
the
the

Pertinent to this case are the following facts:

In 1990, the Davao City Local Automation Project was launched by the city government of
Davao. The goal of said project was to make Davao City a leading center for computer systems
and technology development. It also aimed to provide consultancy and training services and to
assist all local government units in Mindanao set up their respective computer systems.
To implement the project, a Computerization Program Committee, composed of the following
was formed:
Chairman : Atty. Benjamin C. de Guzman, City Administrator
Members : Mr. Jorge Silvosa, Acting City Treasurer
Atty. Victorino Advincula, City Councilor
Mr. Alexis Almendras, City Councilor\
Atty. Onofre Francisco, City Legal Officer
Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office
Atty. Mariano Kintanar, COA Resident Auditor.[1]
The Committees duty was to conduct a thorough study of the different computers in the market,
taking into account the quality and acceptability of the products, the reputation and track record
of the manufacturers and/or their Philippine distributors, the availability of service centers in the
country that can undertake preventive maintenance of the computer hardwares to ensure a long
and uninterrupted use and, last but not the least, the capability of the manufacturers and/or
Philippine distributors to design and put into place the computer system complete with the flow
of paperwork, forms to be used and personnel required.[2]
Following these guidelines, the Committee recommended the acquisition of Goldstar
computers manufactured by Goldstar Information and Communication, Ltd., South Korea and
exclusively distributed in the Philippines by Systems Plus, Inc. (SPI).

After obtaining prior clearance from COA Auditor Kintanar, the Committee proceeded to
negotiate with SPI, represented by its President Rodolfo V. Jao and Executive Vice President
Manuel T. Asis, for the acquisition and installation of the computer hardware and the training of
personnel for the Electronic Data-Processing Center. The total contract cost amounted
toP11,656,810.00
On 5 November 1990, the City Council (Sangguniang Panlungsod) of Davao unanimously
passed Resolution No. 1402 and Ordinance No. 173 approving the proposed contract for
computerization between Davao City and SPI. The Sanggunian, likewise, authorized the City
Mayor (petitioner Duterte) to sign the said contract for and in behalf of Davao City.[3]
On the same day, the Sangguniang issued Resolution No. 1403 and Ordinance No. 174,
the General Fund Supplemental Budget No. 07 for CY 1990 appropriating P3,000,000.00 for the
citys computerization project.
Given the go-signal, the contract was duly signed by the parties thereto and on 8 November
1990, petitioner City Administrator de Guzman released to SPI PNB Check No. 65521 in the
amount of P1,748,521.58 as downpayment.
On 27 November 1990, the Office of the Ombudsman-Mindanao received a letter-complaint
from a concerned citizen, stating that some city officials are going to make a killing in the
transaction.[4] The complaint was docketed as OMB-MIN-90-0425. However, no action was
taken thereon.[5]
Thereafter, sometime in February 1991, a complaint docketed as Civil Case No. 20,550-91,
was instituted before the Regional Trial Court of Davao City, Branch 12 by Dean Pilar Braga,
Hospicio C. Conanan, Jr. and Korsung Dabaw Foundation, Inc. against the petitioners, the City
Council, various city officials and SPI for the judicial declaration of nullity of the aforestated
resolutions and ordinances and the computer contract executed pursuant thereto.
On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to petitioner
Duterte for the cancellation of the computerization contract.
Consequently, on 8 April 1991, the Sangguniang issued Resolution No. 449 and Ordinance
No. 53 accepting Goldstars offer to cancel the computerization contract provided the latter
return the advance payment of P1,748,521.58 to the City Treasurers Office within a period of
one month. Petitioner Duterte, as city mayor, was thus authorized to take the proper steps for
the mutual cancellation of the said contract and to sign all documents relevant thereto.[6]
Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in behalf of Davao
City, and SPI mutually rescinded the contract and the downpayment was duly refunded.
In the meantime, a Special Audit Team of the Commission on Audit was tasked to conduct
an audit of the Davao City Local Automation Project to determine if said contract conformed to
government laws and regulations.

On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 91-05
recommending rescission of the subject contract. A copy of the report was sent to petitioner
Duterte by COA Chairman Eufemio C. Domingo on 7 June 1991. In the latters transmittal letter,
Chairman Domingo summarized the findings of the special audit team, thus:
1. The award of the contract for the Davao City Local Automation Project to Systems Plus, Inc.,
for P11,656,810 was done thru negotiated contract rather than thru competitive public
bidding in violation of Sections 2 and 8 of PD 526. Moreover, there was no sufficient
appropriation for this particular contract in violation of Sec. 85 of PD 1445.
2. Advance payment of P1.7M was made to Systems Plus, Inc. covering 15% of the contract
cost of P11.6M in violation of Sec. 45 of PD 477 and Sec. 88 of PD 1445.
3. The cost of computer hardware and accessories under contract with Systems Plus, Inc. (SPI)
differed from the teams canvass by as much as 1200% or a total of P1.8M.
4. The City had no Information System Plan (ISP) prior to the award of the contract to SPI in
direct violation of Malacaang Memo. Order No. 287 and NCC Memo. Circular 89-1 dated
June 22, 1989. This omission resulted in undue disadvantage to the City Government.
5. To remedy the foregoing deficiencies, the team recommends that the contract with Systems
Plus, Inc. be rescinded in view of the questionable validity due to insufficient
funding. Further, the provisions of NCC-Memorandum Circular 89-1 dated June 22, 1989
regarding procurement and/or installation of computer hardware/system should be
strictly adhered to.[7]
The city government, intent on pursuing its computerization plan, decided to follow the audit
teams recommendation and sought the assistance of the National Computer Center (NCC).After
conducting the necessary studies, the NCC recommended the acquisition of Philips computers
in the amount of P15,792,150.00. Davao City complied with the NCCs advice and hence, was
finally able to obtain the needed computers.
Subsequently, on 1 August 1991, the Anti-Graft League-Davao City Chapter, through one
Miguel C. Enriquez, filed an unverified complaint with the Ombudsman-Mindanao against
petitioners, the City Treasurer, City Auditor, the whole city government of Davao and SPI. The
League alleged that the respondents, in entering into the computerization contract, violated R.A.
No. 3019 (Anti-Graft and Corrupt Practices Act), PD No. 1445 (Government Auditing Code of
the Philippines), COA circulars and regulations, the Revised Penal Code and other pertinent
laws. The case was docketed as OMB-3-91-1768.[8]
On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of the Office of
the Ombudsman sent a letter[9] to COA Chairman Domingo requesting the Special Audit Team to
submit their joint affidavit to substantiate the complaint in compliance with Section 4, par. (a) of
the Rules of Procedure of the Office of the Ombudsman (A. O. No. 07).

On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil Case No.
20,550-91. The dispositive portion reads, thus:
WHEREFORE, in view of all the foregoing, this case is hereby dismissed on the ground of
prematurity and that it has become moot and academic with the mutual cancellation of the
contract. The other claims of the parties are hereby denied. No pronouncement as to costs.
SO ORDERED.[10]
On 12 November 1991, Graft Investigator Manriquez issued an order in OMB-3-91-1768
directing petitioners, Jorge Silvosa (City Treasurer), Mariano Kintanar (City Auditor) and Manuel
T. Asis of SPI to:
xxx file in ten (10) days (1) their respective verified point-by-point comment under oath upon
every allegation of the complaint in Civil Case No. 20,550-91 in the Regional Trial Court (RTC),
Branch 12, Davao City Dean Pilar C. Braga, et al. vs. Illegality of City Council of Davao
Resolutions and Ordinances, and the Computer Contract executed Pursuant Thereto, for
Recovery of Sum of Money, Professional Fees and Costs with Injunctive Relief, including the
Issuance of a Restraining Order and/or a Writ of Preliminary Prohibitory Injunction in which they
filed a motion to dismiss, not an answer and (2) the respective comments, also under oath, on
the Special Audit Report No. 91-05, a copy of which is attached.[11]
On 4 December 1991, the Ombudsman received the affidavits of the Special Audit Team
but failed to furnish petitioners copies thereof.
On 18 February 1992, petitioners submitted a manifestation adopting the comments filed by
their co-respondents Jorge Silvosa and Mariano Kintanar dated 25 November 1991 and 17
January 1992, respectively.
Four years after, or on 22 February 1996, petitioners received a copy of a Memorandum
prepared by Special Prosecution Officer I, Lemuel M. De Guzman dated 8 February 1996
addressed to Ombudsman Aniano A. Desierto regarding OMB-MIN-90-0425 and OMB-3-911768. Prosecutor De Guzman recommended that the charges of malversation, violation of Sec.
3(e), R.A. No. 3019 and Art. 177, Revised Penal Code against petitioners and their corespondents be dismissed. He opined that any issue pertaining to unwarranted benefits or injury
to the government and malversation were rendered moot and academic by the mutual
rescission of the subject contract before the COA submitted its findings (SAR No. 91-05) or
before the disbursement was disallowed. However, Prosecutor De Guzman recommended that
petitioners be charged under Sec. 3(g) of R.A. No. 3019 for having entered into a contract
manifestly and grossly disadvantageous to the government, the elements of profit, unwarranted
benefits or loss to government being immaterial.[12]
Accordingly, the following information dated 8 February 1996 was filed against petitioners
before the Sandiganbayan (docketed as Criminal Case No. 23193):

That on or about November 5, 1990, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, both public officers, accused Benjamin C.
De Guzman being then the City Administrator of Davao City, committing the crime herein
charged in relation to, while in the performance and taking advantage of their official functions,
and conspiring and confederating with each other, did then and there willfully, unlawfully and
criminally enter into a negotiated contract for the purchase of computer hardware and
accessories with the Systems Plus, Incorporated for and in consideration of the amount of
PESOS: ELEVEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND EIGHT HUNDRED TEN
(P11,656,810.00), which contract is manifestly and grossly disadvantageous to the government,
said accused knowing fully-well that the said acquisition cost has been overpriced by as much
as twelve hundred (1200%) percent and without subjecting said acquisition to the required
public bidding.
CONTRARY TO LAW.[13]
On 27 February 1996, petitioners filed a motion for reconsideration and on 29 March 1996,
a Supplemental Motion for Reconsideration on the following grounds:
1. Petitioners were deprived of their right to a preliminary investigation, due process and the
speedy disposition of their case;
2. Petitioner Duterte acted in good faith and was clothed with authority to enter into the subject
contract;
3. There is no contract manifestly and grossly disadvantageous to the government since the
subject contract has been duly rescinded.
On 19 March 1996, the Ombudsman issued a Resolution denying petitioners motion for
reconsideration.
On 18 June 1997, petitioners filed a Motion to Quash which was denied by the
Sandiganbayan in its Order dated 27 June 1997. The Sandiganbayan ruled:
It appears, however, that the accused were able to file motions for the reconsideration of the
Resolution authorizing the filing of the Information herein with the Ombudsman in Manila. This
would mean, therefore, that whatever decision which might have occurred with respect to the
preliminary investigation would have been remedied by the motion for consideration in the
sense that whatever the accused had to say in their behalf, they were able to do in that motion
for reconsideration.
Considering the denial thereof by the Office of the Ombudsman, the Court does not believe
itself empowered to authorize a reinvestigation on the ground of an inadequacy of the basic
preliminary investigation nor with respect to a dispute as to the proper appreciation by the
prosecution of the evidence at that time.

In view hereof, upon further representation by Atty. Medialdea that he represents not only Mayor
Duterte but City Administrator de Guzman as well, upon his commitment, the arraignment
hereof is now set for July 25, 1997 at 8:00 oclock in the morning.[14]
On 15 July 1997, petitioners moved for reconsideration of the above order but the same
was denied by the Sandiganbayan for lack of merit in its Resolution dated 5 August 1997.[15]
Hence, the present recourse.
Petitioners allege that:
THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING PETITIONERS
MOTION TO QUASH AND MOTION FOR RECONSIDERATION, CONSIDERING THAT:
A
(1) PETITIONERS WERE EFFECTIVELY DEPRIVED OF THEIR RIGHT TO A
PRELIMINARY INVESTIGATION PURSUANT TO SEC. 4, RULE II OF
ADMINISTRATIVE ORDER NO. 07 (RULES OF PROCEDURE OF THE OFFICE
OF THE OMBUDSMAN); AND
(2) ASSUMING THAT A PRELIMINARY INVESTIGATION WAS PROPERLY CONDUCTED,
THERE WAS AN INORDINATE DELAY IN TERMINATING THE SAME THEREBY
DEPRIVING THEM OF THEIR RIGHT TO DUE PROCESS AND SPEEDY
DISPOSITION OF THE CASE.
B
THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO CHARGE
PETITIONERS DUTERTE AND DE GUZMAN OF VIOLATING SEC. 3 (G) OF R.A.
3019 IN THAT:
(1) PETITIONER DUTERTE ACTED IN GOOD FAITH AND WAS CLOTHED WITH FULL
LEGAL AUTHORITY FROM THE CITY COUNCIL TO ENTER INTO A CONTRACT
WITH SYSTEMS PLUS, INC.,
(2) THERE IS NO CONTRACT MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO
THE GOVERNMENT TO SPEAK OF AS THE SAME HAS BEEN RESCINDED AND
NO DAMAGE WAS SUFFERED BY THE CITY GOVERNMENT;
(3) ASSUMING THAT THE CONTRACT WAS NOT RESCINDED, THE SAME CANNOT BE
CONSIDERED AS MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT.[16]

On 4 September 1997, the Court issued a Temporary Restraining Order enjoining the
Sandiganbayan from further proceeding with Criminal Case No. 23193.
The Court finds the petition meritorious.
We have judiciously studied the case records and we find that the preliminary investigation
of the charges against petitioners has been conducted not in the manner laid down in
Administrative Order No. 07.
In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were merely
directed to submit a point-by-point comment under oath on the allegations in Civil Case No.
20,550-91 and SAR No. 91-05. The said order was not accompanied by a single affidavit of any
person charging petitioners of any offense as required by law.[17] They were just required to
comment upon the allegations in Civil Case No. 20,550-91 of the Regional Trial Court of Davao
City which had earlier been dismissed and on the COA Special Audit Report. Petitioners had no
inkling that they were being subjected to a preliminary investigation as in fact there was no
indication in the order that a preliminary investigation was being conducted. If Graft Investigator
Manriquez had intended merely to adopt the allegations of the plaintiffs in the civil case or the
Special Audit Report (whose recommendation for the cancellation of the contract in question
had been complied with) as his basis for criminal prosecution, then the procedure was plainly
anomalous and highly irregular. As a consequence, petitioners constitutional right to due
process was violated.
Sections (2) and (4), Rule II of Administrative Order No. 07 (Rules of Procedure of the
Office of the Ombudsman) provide:
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend
whether or not it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) endorsed 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 for administrative adjudication; or
f) subjected to a preliminary investigation
xxx

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 be 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 the
proper Deputy Ombudsman in all other cases.

In what passes off as application of the foregoing rules, all that petitioners were asked to do
was merely to file their comment upon every allegation of the complaint in Civil Case No.
20,550-91 in the Regional Trial Court (RTC) and on the COA Special Audit Report. The
comment referred to in Section 2(b) Rule II, of A.O. No. 07 is not part of or is equivalent to the
preliminary investigation contemplated in Sec. 4, Rule II, of the same Administrative Order. A
plain reading of Sec. 2 would convey the idea that upon evaluation of the complaint, the
investigating officer may recommend its outright dismissal for palpable want of merit; otherwise,
or if the complaint appears to have some merit, the investigator may recommend action under
any of those enumerated from (b) to (f), that is, the investigator may recommend that the
complaint be: referred to respondent for comment, or endorsed to the proper government office
or agency which has jurisdiction over the case; or forwarded to the appropriate office of official
for fact-finding investigation. Now, if the investigator opts to recommend the filing of a comment
by the respondent, it is presumably because he needs more facts and information for further
evaluation of the merits of the complaint. That being done, the investigating officer shall again
recommend any one of the actions enumerated in Section 2, which include the conduct of a
preliminary investigation.
A preliminary investigation, on the other hand, takes on an adversarial quality and an
entirely different procedures comes into play. This must be so because the 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 public trial.[18] It is also intended to protect the state from having to conduct useless
and expensive trials.[19] 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.[20]
Note that in preliminary investigation, if the complaint is unverified or based only on official
reports (which is the situation obtaining in the case at bar), the complainant is required to submit
affidavits to substantiate the complaint. The investigating officer, thereafter, shall issue an order,
to which copies of the complaint-affidavit are attached, requiring the respondent to submit his
counter-affidavits. In the preliminary investigation, what the respondent is required to file is a
counter-affidavit, not a comment. It is only when the respondent fails to file a counter-affidavit
may the investigating officer consider the respondents comment as the answer to the complaint.
Against the foregoing backdrop, there was a palpable non-observance by the Office of the
Ombudsman of the fundamental requirements of preliminary investigation.
Apparently, in the case at bar, the investigating officer considered the filing of petitioners
comment as a substantial compliance with the requirements of a preliminary investigation.
Initially, Graft Investor Manriquez directed the members of the Special Audit Team on 9 October
1991 to submit their affidavits relative to SAR No. 91-05. However, on 12 November 1991,

before the affidavits were submitted, Manriquez required petitioners to submit their respective
comments on the complaint in the civil case and on Special Audit Report (SAR) 91-05. Even
when the required affidavits were filed by the audit team on 4 December 1991, petitioners were
still not furnished copies thereof. The Ombudsman contends that failure to provide petitioners
the complaint-affidavits is immaterial since petitioners were well aware of the existence of the
civil complaint and SAR No. 91-05. We find the Ombudsmans reasoning flawed. The civil
complaint and the COA Special Audit Report are not equivalent to the complaint-affidavits
required by the rules. Moreover, long before petitioners were directed to file their comments, the
civil complaint (Civil Case No. 20, 550-91) was rendered moot and academic and, accordingly,
dismissed following the mutual cancellation of the computerization contract. In SAR No. 91-05,
on the other hand, petitioners were merely advised to rescind the subject contract which was
accomplished even before the audit report came out. In light of these circumstances, the Court
cannot blame petitioners for being unaware of the proceedings conducted against them.
In Olivas vs. Office of the Ombudsman,[21] this Court, speaking through Justice Vicente V.
Mendoza, emphasized that it is mandatory requirement for the complaint to submit his affidavit
and those of his witnesses before the respondent can be compelled to submit his counteraffidavits and other supporting documents. Thus:
Even in investigations looking to the prosecution of a party, Rule I, 3 can only apply to the
general criminal investigation, which in the case at bar was already conducted by the PCGG.
But after the Ombudsman and his deputies have gathered evidence and their investigation has
ceased to be a general exploratory one and they decide to bring the action against a party, their
proceedings become adversary and Rule II 4(a) then applies. This means that before the
respondent can be required to submit counter-affidavits and other supporting documents, the
complaint must submit his affidavit and those of his witnesses. This is true not only of
prosecutions of graft cases under Rep. Act No. 3019 but also of actions for the recovery of
unexplained wealth under Rep. Act No. 1379, because 2 of this latter law requires that before a
petition is filed there must be a previous inquiry similar to preliminary investigation in criminal
cases.
Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence
may be considered. While reports and 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. As
this Court held in Cojuangco, Jr. v. PCGG:
Although such 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, a 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 then been

called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is
opportunity to be heard and for the production and weighing of evidence, and a decision is
rendered thereof.
II
Compounding the deprivation of petitioners of their right to a preliminary investigation was
the undue and unreasonable delay in the termination of the irregularity conducted preliminary
investigation. Petitioners manifestation adopting the comments of their co-respondents was filed
on 18 February 1992. However, it was only on 22 February 1996 or four (4) years later, that
petitioners received a memorandum dated 8 February 1996 submitted by Special Prosecutor
Officer I Lemuel M. De Guzman recommending the filing of information against them for
violation of Sec. 3(g) of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act). The inordinate
delay in the conduct of the preliminary investigation infringed upon their constitutionally
guaranteed right to a speedy disposition of their case. [22] In Tatad vs. Sandiganbayan,[23] we held
that an undue delay of close to three (3) years in the termination of the preliminary investigation
in the light of the circumstances obtaining in that case warranted the dismissal of the case:
We find the long delay in the termination of the preliminary investigation by the Tanodbayan in
the instant case to be violative of the constitutional right of the accused to due process.
Substantial adherence to the requirements of the law governing the conduct of preliminary
investigation, including substantial compliance with the time limitation prescribed by the law for
the resolution of the case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the
due process clause, but under the constitutional guarantee of speedy disposition of cases as
embodied in Section 16 of the Bill of Rights (both in the 1973 and 1987 Constitution), the
inordinate delay is violative of the petitioners constitutional rights. A delay of close to three (3)
years can not be deemed reasonable or justifiable in the light of the circumstances obtaining in
the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long
delay by indulging in the speculative assumption that the delay may be due to a painstaking and
grueling scrutiny by the Tanodbayan as to whether the evidence presented during the
preliminary investigation merited prosecution of a former high-ranking government official. In the
first place, such a statement suggests a double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five charges against the petitioner were for his
alleged failure to file his sworn statement of assets and liabilities required by Republic Act No.
3019, which certainly did not involve complicated legal and factual issues necessitating such
painstaking and grueling scrutiny as would justify a delay of almost three years in terminating
the preliminary investigation. The other two charges relating to alleged bribery and alleged
giving of unwarranted benefits to a relative, while presenting more substantial legal and factual
issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan
to resolve the case.
It has been suggested that the long delay in terminating the preliminary investigation should not
be deemed fatal, for even the complete absence of a preliminary investigation does not warrant

dismissal of the information. True but the absence of a preliminary investigation can be
corrected by giving the accused such investigation. But an undue delay in the conduct of the
preliminary investigation can not be corrected, for until now, man has not yet invented a device
for setting back time.
In the recent case of Angchangco, Jr. vs. Ombudsman,[24] the Court upheld Angchangcos
right to the speedy disposition of his case. Angchangco was a sheriff in the Regional Trial Court
of Agusan del Norte and Butuan City. In 1990 criminal complaints were filed against him which
remained pending before the Ombudsman even after his retirement in 1994. The Court thus
ruled:
Here, the Office of the Ombudsman, due to its failure to resolve the criminal charges against
petitioner for more than six years, has transgressed on the constitutional right of petitioner to
due process and to a speedy disposition of the cases against him, as well as the Ombudsmans
own constitutional duty to act promptly on complaints filed before it. For all these past 6 years,
petitioner has remained under a cloud, and since his retirement in September 1994, he has
been deprived of the fruits of his retirement after serving the government for over 42 years all
because of the inaction of respondent Ombusman. If we wait any longer, it may be too late for
petitioner to receive his retirement benefits, not to speak of clearing his name. This is a case of
plain injustice which calls for the issuance of the writ prayed for.[25]
We are not persuaded by the Ombudsmans argument that the Tatad ruling does not apply
to the present case which is not politically motivated unlike the former, pointing out the following
findings of the Court in the Tatad decision:
A painstaking review of the facts can not but leave the impression that political motivations
played a vital role in activating and propelling the prosecutional process in this case. Firstly, the
complaint came to life, as it were, only after petitioner Tatad had a falling out with President
Marcos. Secondly, departing from established procedures prescribed by law for preliminary
investigation, which require the submission of affidavits and counter-affidavits by the
complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to
the Presidential Security Command for fact-finding investigation and report.
We find such blatant departure from the established procedure as dubious, but revealing
attempt to involve an office directly under the President in the prosecutional process lending
credence to the suspicion that the prosecution was politically motivated. We cannot emphasize
too strongly that prosecutors should not allow, and should avoid, giving the impression that their
noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other
purposes alien to, or subversive of, the basic and fundamental objective observing the interest
of justice evenhandedly, without fear or favor to any and all litigants alike whether rich or poor,
weak or strong, powerless or mighty. Only by strict adherence to the established procedure may
be publics perception of the impartiality of the prosecutor be enhanced.[26]

The Ombudsman endeavored to distinguish the present suit from the Angchangco case by
arguing that in the latter, Angchangco filed several motions for early resolution, implying that in
the case at bar petitioners were not as vigilant in asserting or protecting their rights.
We disagree. The constitutional right to speedy disposition of cases does not come into
play only when political considerations are involved. The Constitution makes no such
distinction.While political motivation in Tatad may have been a factor in the undue delay in the
termination of the preliminary investigation therein to justify the invocation of their right to
speedy disposition of cases, the particular facts of each case must be taken into consideration
in the grant of the relief sought. In the Tatad case, we are reminded:
In a number of cases, this Court has not hesitated to grant the so-called radical relief and to
spare the accused from the undergoing the rigors and expense of a full-blown trial where it is
clear that he has been deprived of due process of law or other constitutional guaranteed
rights. Of course, it goes without saying that in the application of the doctrine enunciated in
those cases, particularly regard must be taken of the facts and circumstances peculiar to its
case.[27]
In Alviso vs. Sandiganbayan,[28] the Court observed that the concept of speedy disposition
of cases is a relative term and must necessarily be a flexible concept and that the factors that
may be considered and balanced are the length of the delay, the assertion or failure to assert
such right by the accused, and the prejudice caused by the delay.
Petitioners in this case, however, could not have urged the speedy resolution of their case
because they were completely unaware that the investigation against them was still ongoing.Peculiar to this case, we reiterate, is the fact that petitioners were merely asked to
comment, and not file counter-affidavits which is the procedure to follow in a preliminary
investigation.After giving their explanation and after four long years of being in the dark,
petitioners, naturally, had reason to assume that the charges against them had already been
dismissed.
On the other hand, the Office of the Ombudsman failed to present any plausible, special or
even novel reason which could justify the four-year delay in terminating its investigation. Its
excuse for the delay-the many layers of review that the case had to undergo and the meticulous
scrutiny it had to entail has lost its novelty and is no longer appealing, as was the invocation in
the Tatad case. The incident before us does not involve complicated factual and legal issues,
specially in view of the fact that the subject computerization contract had been mutually
cancelled by the parties thereto even before the Anti-Graft League filed its complaint.
The Office of the Ombudsman capitalizes on petitioners three motions for extension of the
time to file comment which it imputed for the delay. However, the delay was not caused by the
motions for extension. The delay occurred after petitioners filed their comment. Between 19921996, petitioners were under no obligation to make any move because there was no preliminary
investigation within the contemplation of Section 4, Rule II of A.O. No. 07 to speak of in the first
place.

III
Finally, under the facts of the case, there is no basis in the law or in fact to charge
petitioners for violation of Sec. 3(g) of R.A. No. 3019. To establish probable cause against the
offender for violation of Sec. 3(g), the following elements must be present: (1) the offender is a
public officer; (2) he entered into a contract or transaction in behalf of the government; (3) the
contract or transaction is grossly and manifestly disadvantageous to the government. The
second element of the crime that the accused public officers entered into a contract in behalf of
the government is absent. The computerization contract was rescinded on 6 May
1991 before SAR No. 91-05 came out on 31 May 1991 and before the Anti-Graft League filed its
complaint with the Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League
instituted their complaint and the Ombudsman issued its Order on 12 November 1991, there
was no longer any contract to speak of. The contract, after 6 May 1991 became in
contemplation of the law, non-existent, as if no contract was ever executed.
WHEREFORE, premises considered, the petition is GRANTED and Criminal Case No.
23193 is hereby DISMISSED. The temporary restraining order issued on 4 September 1997 is
made PERMANENT.
SO ORDERED.

FIRST DIVISION
METROPOLITAN BANK and
TRUST COMPANY,
Petitioner,

G.R. No. 164538

Present:

- versus -

CORONA, C. J., Chairperson,

LEONARDO-DE CASTRO,
BERSAMIN,*
DEL CASTILLO, and
PEREZ, JJ.

ROGELIO REYNADO and

JOSE C. ADRANDEA,**
Promulgated:
Respondents.
August 9, 2010
x-------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:

It is a hornbook doctrine in our criminal law that the criminal liability for estafa is not affected by a
compromise, for it is a public offense which must be prosecuted and punished by the government on its own
motion, even though complete reparation [has] been made of the damage suffered by the private offended
party. Since a criminal offense like estafa is committed against the State, the private offended party may not waive
or extinguish the criminal liability that the law imposes for the commission of the crime.[1]
This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks the reversal of the Court
of Appeals (CAs) Decision[2] dated October 21, 2002 in CA-G.R. SP No. 58548 and its further Resolution [3] dated
July 12, 2004 denying petitioners Motion for Reconsideration.[4]
Factual Antecedents
On January 31, 1997, petitioner Metropolitan Bank and Trust Company charged respondents before the Office of
the City Prosecutor of Manila with the crime of estafa under Article 315, paragraph 1(b) of the Revised Penal
Code. In the affidavit[5] of petitioners audit officer, Antonio Ivan S. Aguirre, it was alleged that the special audit
conducted on the cash and lending operations of its Port Area branch uncovered anomalous/fraudulent transactions
perpetrated by respondents in connivance with client Universal Converter Philippines, Inc. (Universal); that
respondents were the only voting members of the branchs credit committee authorized to extend credit
accommodation to clients up to P200,000.00; that through the so-called Bills Purchase Transaction, Universal,
which has a paid-up capital of only P125,000.00 and actual maintaining balance of P5,000.00, was able to make
withdrawals totaling P81,652,000.00[6] against uncleared regional checks deposited in its account at petitioners Port
Area branch; that, consequently, Universal was able to utilize petitioners funds even before the seven-day clearing
period for regional checks expired; that Universals withdrawals against uncleared regional check deposits were
without prior approval of petitioners head office; that the uncleared checks were later dishonored by the drawee
bank for the reason Account Closed; and, that respondents acted with fraud, deceit, and abuse of confidence.
In their defense, respondents denied responsibility in the anomalous transactions with Universal and claimed that
they only intended to help the Port Area branch solicit and increase its deposit accounts and daily transactions.
Meanwhile, on February 26, 1997, petitioner and Universal entered into a Debt Settlement Agreement [7] whereby
the latter acknowledged its indebtedness to the former in the total amount ofP50,990,976.27[8] as of February 4,
1997 and undertook to pay the same in bi-monthly amortizations in the sum of P300,000.00 starting January 15,

1997, covered by postdated checks, plus balloon payment of the remaining principal balance and interest and other
charges, if any, on December 31, 2001.[9]
Findings of the Prosecutor
Following the requisite preliminary investigation, Assistant City Prosecutor Winnie M. Edad (Prosecutor Edad) in
her Resolution[10] dated July 10, 1997 found petitioners evidence insufficient to hold respondents liable for estafa.
According to Prosecutor Edad:
The execution of the Debt Settlement Agreement puts complainant bank in estoppel to argue that
the liability is criminal. Since the agreement was made even before the filing of this case, the
relations between the parties [have] change[d], novation has set in and prevented the incipience of
any criminal liability on the part of respondents.[11]

Thus, Prosecutor Edad recommended the dismissal of the case:

WHEREFORE, for insufficiency of evidence, it is respectfully recommended that the case be
dismissed.[12]

On December 9, 1997, petitioner appealed the Resolution of Prosecutor Edad to the Department of Justice (DOJ) by
means of a Petition for Review.[13]
Ruling of the Department of Justice
On June 22, 1998, the DOJ dismissed the petition ratiocinating that:
It is evident that your client based on the same transaction chose to file estafa only against its
employees and treat with kid gloves its big time client Universal who was the one who benefited
from this transaction and instead, agreed that it should be paid on installment basis.
To allow your client to make the choice is to make an unwarranted classification under the law
which will result in grave injustice against herein respondents. Thus, if your client agreed that no
estafa was committed in this transaction with Universal who was the principal player and
beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only
on conspiracy with Universal.
Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents
misappropriated the P53,873,500.00 which Universal owed your client after its checks deposited
with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive
Committee and the Credit Committee of Metrobank were duly notified of these transactions

which they approved. Further, no damage was caused to your client as it agreed [to] the settlement
[with] Universal.[14]

A Motion for Reconsideration[15] was filed by petitioner, but the same was denied on March 1, 2000 by
then Acting Secretary of Justice Artemio G. Tuquero.[16]
Aggrieved, petitioner went to the CA by filing a Petition for Certiorari & Mandamus.[17]
Ruling of the Court of Appeals
By Decision[18] of October 21, 2002, the CA affirmed the twin resolutions of the Secretary of Justice. Citing
jurisprudence[19] wherein we ruled that while novation does not extinguish criminal liability, it may prevent the rise
of such liability as long as it occurs prior to the filing of the criminal information in court. [20] Hence, according to the
CA, [j]ust as Universal cannot be held responsible under the bills purchase transactions on account of novation,
private respondents, who acted in complicity with the former, cannot be made liable [for] the same transactions.
[21]

The CA added that [s]ince the dismissal of the complaint is founded on legal ground, public respondents may not

be compelled by mandamus to file an information in court.[22]

Incidentally, the CA totally ignored the Comment[23] of the Office of the Solicitor General (OSG) where the latter,
despite being the statutory counsel of public respondent DOJ, agreed with petitioner that the DOJ erred in
dismissing the complaint. It alleged that where novation does not extinguish criminal liability for estafa neither does
restitution negate the offense already committed.[24]
Additionally, the OSG, in sharing the views of petitioner contended that failure to implead other responsible
individuals in the complaint does not warrant its dismissal, suggesting that the proper remedy is to cause their
inclusion in the information.[25] This notwithstanding, however, the CA disposed of the petition as follows:
WHEREFORE, the petition is DENIED due course and, accordingly, DISMISSED.
Consequently, the resolutions dated June 22, 1998 and March 1, 2000 of the Secretary of Justice
are AFFIRMED.
SO ORDERED.[26]

Hence, this instant petition before the Court.

On November 8, 2004, we required[27] respondents to file Comment, not a motion to dismiss, on the petition within
10 days from notice. The OSG filed a Manifestation and Motion in Lieu of Comment [28] while respondent Jose C.

Adraneda (Adraneda) submitted his Comment[29] on the petition. The Secretary of Justice failed to file the required
comment on the OSGs Manifestation and Motion in Lieu of Comment and respondent Rogelio Reynado (Reynado)
did not submit any. For which reason, we issued a show cause order[30] on July 19, 2006. Their persistent noncompliance with our directives constrained us to resolve that they had waived the filing of comment and to impose
a fine of P1,000.00 on Reynado. Upon submission of the required memorandum by petitioner and Adraneda, the
instant petition was submitted for resolution.
Issues
Petitioner presented the following main arguments for our consideration:
1.

Novation and undertaking to pay the amount embezzled do not extinguish criminal liability.

2.

It is the duty of the public prosecutor to implead all persons who appear criminally liable for the

offense charged.
Petitioner persistently insists that the execution of the Debt Settlement Agreement with Universal did not
absolve private respondents from criminal liability for estafa. Petitioner submits that the settlement affects only the
civil obligation of Universal but did not extinguish the criminal liability of the respondents. Petitioner thus faults the
CA in sustaining the DOJ which in turn affirmed the finding of Prosecutor Edad for committing apparent error in the
appreciation and the application of the law on novation. By petitioners claim, citing Metropolitan Bank and
Trust Co. v. Tonda,[31] the negotiations pertain [to] and affect only the civil aspect of the case but [do] not preclude
prosecution for the offense already committed.[32]
In his Comment, Adraneda denies being a privy to the anomalous transactions and passes on the sole
responsibility to his co-respondent Reynado as the latter was able to conceal the pertinent documents being the head
of petitioners Port Area branch. Nonetheless, he contends that because of the Debt Settlement Agreement, they
cannot be held liable for estafa.
The OSG, for its part, instead of contesting the arguments of petitioner, even prayed before the CA to
give due course to the petition contending that DOJ indeed erred in dismissing the complaint for estafa.
Given the facts of the case, the basic issue presented before this Court is whether the execution of the Debt
Settlement Agreement precluded petitioner from holding respondents liable to stand trial for estafa under Art. 315
(1)(b) of the Revised Penal Code.[33]

Our Ruling
We find the petition highly meritorious.
Novation not a mode of extinguishing
criminal liability for estafa; Criminal liability for estafa not
affected by compromise or novation of contract.
Initially, it is best to emphasize that novation is not one of the grounds prescribed by the Revised Penal
Code for the extinguishment of criminal liability.[34]
In a catena of cases, it was ruled that criminal liability for estafa is not affected by a compromise or novation of
contract. In Firaza v. People[35] and Recuerdo v. People,[36] this Court ruled that in a crime of estafa, reimbursement
or belated payment to the offended party of the money swindled by the accused does not extinguish the criminal
liability of the latter. We also held inPeople v. Moreno[37] and in People v. Ladera[38] that criminal liability for estafa
is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and
punished by the Government on its own motion even though complete reparation should have been made of the
damage suffered by the offended party. Similarly in the case of MetropolitanBank and Trust Company v.
Tonda[39] cited by petitioner, we held that in a crime of estafa, reimbursement of or compromise as to the amount
misappropriated, after the commission of the crime, affects only the civil liability of the offender, and not his
criminal liability.
Thus, the doctrine that evolved from the aforecited cases is that a compromise or settlement entered into after the
commission of the crime does not extinguish accuseds liability for estafa.Neither will the same bar the prosecution
of said crime. Accordingly, in such a situation, as in this case, the complaint for estafa against respondents should
not be dismissed just because petitioner entered into a Debt Settlement Agreement with Universal. Even the OSG
arrived at the same conclusion:
Contrary to the conclusion of public respondent, the Debt Settlement Agreement entered
into between petitioner and Universal Converter Philippines extinguishes merely the civil aspect
of the latters liability as a corporate entity but not the criminal liability of the persons who actually
committed the crime of estafa against petitioner Metrobank. x x x[40]
Unfortunately for petitioner, the above observation of the OSG was wittingly glossed over in the body of
the assailed Decision of the CA.
Execution of the Debt Settlement Agreement did not prevent
the incipience of criminal liability.

Even if the instant case is viewed from the standpoint of the law on contracts, the disposition absolving the
respondents from criminal liability because of novation is still erroneous.
Under Article 1311 of the Civil Code, contracts take effect only between the parties, their assigns and heirs,
except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The civil law principle of relativity of contracts provides that contracts can only
bind the parties who entered into it, and it cannot favor or prejudice a third person, even if he is aware of such
contract and has acted with knowledge thereof.[41]
In the case at bar, it is beyond cavil that respondents are not parties to the agreement. The intention of the
parties thereto not to include them is evident either in the onerous or in the beneficent provisions of said
agreement. They are not assigns or heirs of either of the parties. Not being parties to the agreement, respondents
cannot take refuge therefrom to bar their anticipated trial for the crime they committed. It may do well for
respondents to remember that the criminal action commenced by petitioner had its genesis from the alleged fraud,
unfaithfulness, and abuse of confidence perpetrated by them in relation to their positions as responsible bank
officers. It did not arise from a contractual dispute or matters strictly between petitioner and Universal. This being
so, respondents cannot rely on subject settlement agreement to preclude prosecution of the offense already
committed to the end of extinguishing their criminal liability or prevent the incipience of any liability that may arise
from the criminal offense. This only demonstrates that the execution of the agreement between petitioner and
Universal has no bearing on the innocence or guilt of the respondents.
Determination of the probable cause, a function belonging to
the public prosecutor; judicial review allowed where it has
been clearly established that the prosecutor committed grave
abuse of discretion.

In a preliminary investigation, a public prosecutor determines whether a crime has been committed and
whether there is probable cause that the accused is guilty thereof. [42] The Secretary of Justice, however, may review
or modify the resolution of the prosecutor.
Probable cause is defined as such facts and circumstances that will engender a well-founded belief that a crime has
been committed and that the respondent is probably guilty thereof and should be held for trial. [43] Generally, a public
prosecutor is afforded a wide latitude of discretion in the conduct of a preliminary investigation. By way of
exception, however, judicial review is allowed where respondent has clearly established that the prosecutor
committed grave abuse of discretion that is, when he has exercised his discretion in an arbitrary, capricious,

whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an
evasion of a positive duty or virtual refusal to perform a duty enjoined by law.[44]Tested against these guidelines, we
find that this case falls under the exception rather than the general rule.
A close scrutiny of the substance of Prosecutor Edads Resolution dated July 10, 1997 readily reveals that were it not
for the Debt Settlement Agreement, there was indeed probable cause to indict respondents for the crime
charged. From her own assessment of the Complaint-Affidavit of petitioners auditor, her preliminary finding is that
Ordinarily, the offense of estafa has been sufficiently established.[45] Interestingly, she suddenly changed tack and
declared that the agreement altered the relation of the parties and that novation had set in preventing the incipience
of any criminal liability on respondents. In light of the jurisprudence herein earlier discussed, the prosecutor should
not have gone that far and executed an apparent somersault. Compounding further the error, the DOJ in dismissing
petitioners petition, ruled out estafa contrary to the findings of the prosecutor. Pertinent portion of the ruling reads:
Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents
misappropriated the P53,873,500.00 which Universal owed your client after its checks deposited
with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive
Committee and the Credit Committee of Metrobank were duly notified of these transactions
which they approved. Further, no damage was caused to your client as it agreed [to] the settlement
[with] Universal.[46]

The findings of the Secretary of Justice in sustaining the dismissal of the Complaint are matters of defense
best left to the trial courts deliberation and contemplation after conducting the trial of the criminal case. To
emphasize, a preliminary investigation for the purpose of determining the existence of probable cause is not a part of
the trial. A full and exhaustive presentation of the parties evidence is not required, but only such as may engender a
well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. [47] 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.
[48]

So we held in Balangauan v. Court of Appeals:[49]

Applying the foregoing disquisition to the present petition, the reasons of DOJ for affirming the
dismissal of the criminal complaints for estafa and/or qualified estafa are determinative of whether
or not it committed grave abuse of discretion amounting to lack or excess of jurisdiction. In
requiring hard facts and solid evidence as the basis for a finding of probable cause to hold
petitioners Bernyl and Katherene liable to stand trial for the crime complained of, the DOJ
disregards the definition of probable cause that it is a reasonable ground of presumption that a
matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor as would
lead a person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean actual and positive cause nor does it import
absolute certainty. It is merely based on opinion and reasonable belief; that is, the belief that the
act or omission complained of constitutes the offense charged. While probable cause demands

more than bare suspicion, it requires less than evidence which would justify conviction. Herein,
the DOJ reasoned as if no evidence was actually presented by respondent HSBC when in fact the
records of the case were teeming; or it discounted the value of such substantiation when in fact the
evidence presented was adequate to excite in a reasonable mind the probability that petitioners
Bernyl and Katherene committed the crime/s complained of. In so doing, the DOJ whimsically
and capriciously exercised its discretion, amounting to grave abuse of discretion, which rendered
its resolutions amenable to correction and annulment by the extraordinary remedy of certiorari.

In the case at bar, as analyzed by the prosecutor, a prima facie case of estafa exists against respondents. As
perused by her, the facts as presented in the Complaint-Affidavit of the auditor are reasonable enough to excite her
belief that respondents are guilty of the crime complained of. In Andres v. Justice Secretary Cuevas[50] we had
occasion to rule that the presence or absence of the elements of the crime is evidentiary in nature and is a matter of
defense that may be passed upon after a full-blown trial on the merits.[51]
Thus confronted with the issue on whether the public prosecutor and the Secretary of Justice committed
grave abuse of discretion in disposing of the case of petitioner, given the sufficiency of evidence on hand, we do not
hesitate to rule in the affirmative. We have previously ruled that grave abuse of discretion may arise when a lower
court or tribunal violates and contravenes the Constitution, the law or existing jurisprudence.
Non-inclusion of officers of Universal not a ground for the
dismissal of the complaint.

The DOJ in resolving to deny petitioners appeal from the resolution of the prosecutor gave another ground
failure to implead the officers of Universal. It explained:
To allow your client to make the choice is to make an unwarranted classification under
the law which will result in grave injustice against herein respondents. Thus, if your client agreed
that no estafa was committed in this transaction with Universal who was the principal player and
beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only
on conspiracy with Universal.[52]

The ratiocination of the Secretary of Justice conveys the idea that if the charge against respondents rests
upon the same evidence used to charge co-accused (officers of Universal) based on the latters conspiratorial
participation, the non-inclusion of said co-accused in the charge should benefit the respondents.

The reasoning of the DOJ is flawed.

Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must be charged with
what crime or for what offense. Public prosecutors, not the private complainant, are the ones obliged to bring forth
before the law those who have transgressed it.
Section 2, Rule 110 of the Rules of Court [53] mandates that all criminal actions must be commenced either by
complaint or information in the name of the People of the Philippines against all persons who appear to be
responsible therefor. Thus the law makes it a legal duty for prosecuting officers to file the charges against
whomsoever the evidence may show to be responsible for the offense. The proper remedy under the circumstances
where persons who ought to be charged were not included in the complaint of the private complainant is definitely
not to dismiss the complaint but to include them in the information. As the OSG correctly suggested, the proper
remedy should have been the inclusion of certain employees of Universal who were found to have been in cahoots
with respondents in defrauding petitioner. The DOJ, therefore, cannot seriously argue that because the officers of
Universal were not indicted, respondents themselves should not likewise be charged. Their non-inclusion cannot be
perversely used to justify desistance by the public prosecutor from prosecution of the criminal case just because not
all of those who are probably guilty thereof were charged.
Mandamus a proper remedy when resolution of public
respondent is tainted with grave abuse of discretion.

Mandamus is a remedial measure for parties aggrieved. It shall issue when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust or station.[54] The writ of mandamus is not available to control discretion neither may it be issued to
compel the exercise of discretion. Truly, it is a matter of discretion on the part of the prosecutor to determine which
persons appear responsible for the commission of a crime. However, the moment he finds one to be so liable it
becomes his inescapable duty to charge him therewith and to prosecute him for the same. In such a situation, the
rule loses its discretionary character and becomes mandatory. Thus, where, as in this case, despite the sufficiency of
the evidence before the prosecutor, he refuses to file the corresponding information against the person responsible,
he abuses his discretion. His act is tantamount to a deliberate refusal to perform a duty enjoined by law. The
Secretary of Justice, on the other hand, gravely abused his discretion when, despite the existence of sufficient
evidence for the crime of estafa as acknowledged by the investigating prosecutor, he completely ignored the latters
finding and proceeded with the questioned resolution anchored on purely evidentiary matters in utter disregard of
the concept of probable cause as pointed out in Balangauan. To be sure, findings of the Secretary of Justice are not
subject to review unless shown to have been made with grave abuse. [55] The present case calls for the application of
the exception. Given the facts of this case, petitioner has clearly established that the public prosecutor and the
Secretary of Justice committed grave abuse of discretion.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No.
58548 promulgated on October 21, 2002 affirming the Resolutions dated June 22, 1998 and March 1, 2000 of the
Secretary of Justice, and its Resolution dated July 12, 2004 denying reconsideration thereon are
hereby REVERSED and SET ASIDE. The public prosecutor is ordered to file the necessary information for
estafa against the respondents.

SO ORDERED.

G.R. No. 173081

December 15, 2010

ERNESTO MARCELO, JR. and LAURO LLAMES, Petitioners,

vs.
RAFAEL R. VILLORDON, Assistant City Prosecutor of Quezon
City, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review on certiorari 1 assailing the Orders dated 5
January 20062 and 30 May 20063 of the Regional Trial Court (RTC) of Quezon City,
Branch 105, in Civil Case No. Q-05-56367.
The Facts
On 2 April 2004, petitioners Ernesto Marcelo, Jr. and Lauro Llames, together with two
others, filed with the Office of the City Prosecutor of Quezon City a criminal
complaint4 against their former employer Eduardo R. Dee, Sr. (Dee). The criminal
complaint stemmed from Dees non-payment of their wages as President and
General Manager of New Sampaguita Builders Construction Incorporated. 5
On 28 April 2004, respondent Assistant City Prosecutor of Quezon City Rafael R.
Villordon (Villordon) issued a subpoena against Dee to appear at the preliminary
investigation of the case set on 18 May 2004. Dee failed to appear. The case was
again set for preliminary investigation on several dates but Dee failed to appear in
all of them. Each time the case was reset, petitioners asked that the case be
declared submitted for resolution.
On 29 July 2004, Villordon declared the case submitted for resolution.
On 5 November 2004, Dee filed a motion to reopen the case and attached his
Counter-Affidavit. Assistant City Prosecutor Rogelio Velasco, Villordons Division
Chief, approved the motion on 8 December 2004. Villordon then called the parties
to a hearing on 28 December 2004. At the hearing, Dee failed to appear but
petitioners were present and signed the minutes of the hearing confirming that they
would appear and submit their Reply-Affidavit on 18 January 2005. Another hearing
was also scheduled on 3 February 2005. On both dates, Dee failed to appear and
petitioners did not submit their Reply-Affidavit.

On 22 March 2005, petitioners filed a proceeding for grievance/request for

assistance with the Office of the Ombudsman (OMB). After several follow-ups for the
early resolution of the case without receiving any action on the matter, petitioners
later filed a case for violation of Section 3(f) 6 of Republic Act No. 30197 against
Villordon with the OMB.8 On 31 July 2007, the OMB dismissed the case.
Meanwhile, on 19 September 2005, petitioners filed a petition for
mandamus9 against Villordon with the Regional Trial Court (RTC) of Quezon City,
Branch 105. Petitioners prayed that Villordon be ordered to resolve the criminal
complaint and pay petitioners (1) moral damages in the amount of P25,000 each;
(2) exemplary damages in the amount of P25,000; (3) attorneys fees in the amount
of P10,000, plus P2,000 per court appearance; and (4) cost of suit. 10
In an Order dated 5 January 2006, the RTC dismissed the case for lack of merit. The
RTC explained that petitioners failed to exhaust available administrative remedies
before resorting to the court. The RTC stated that petitioners should have first
referred the matter to the Chief City Prosecutor, being Villordons superior, to
correct Villordons error, if any. The RTC added that petitioners filed an
administrative charge against Villordon with the OMB for neglect of duty without
waiting for the final determination of the case. 11 The RTC explained further:
While the rule on exhaustion of administrative remedies is not an iron clad rule, the
circumstances availing in this case does not categorized as an exception. The
pending case for Estafa and violation of Article 116 of the Labor Code before the
respondent, assuming they raise only legal questions, will not justify the petitioners
to compel the former to make an immediate resolution of the same. As the record of
preliminary investigation will show, a Motion to Re-open Case was granted as per
notation of his Division Chief and was scheduled for preliminary investigation on 18
January 2005 and 3 February 2005, respectively, which the petitioners themselves
conformed with. On [the] 18 January 2005 hearing, petitioners appeared and signed
the minutes giving [chance] for the last time to Eduardo Dee, Sr. to show up on the
next hearing which was 3 February 2005. However, came the 3 February 2005
hearing, none of the parties appeared. This development has led the respondent to
wait for the petitioners to file any pleading on account of the Counter-Affidavit filed
by Eduardo Dee, Sr.[,] a copy of which was furnished the petitioners. As respondent
reasoned out, he waited for a move from the petitioners to enable him to dispose
[of] the cases accordingly. Until and after the case is submitted for resolution, any
motion asking for immediate resolution to that sort is still unavailing. Thus, from the
foregoing circumstances, the petitioners have not shown [any] legal right to compel
the respondent to perform the relief they are suing for.
WHEREFORE, in the light of the foregoing considerations, the petition is DISMISSED
for lack of merit.

SO ORDERED.12
Petitioners filed a motion for reconsideration which the RTC denied for lack of merit
in an Order dated 30 May 2006.
Hence, this petition.
The Issue
The main issue is whether petitioners are entitled to the extraordinary writ of
mandamus.
The Courts Ruling
The petition lacks merit.
Petitioners submit that the petition for mandamus was not prematurely filed with
the RTC. Petitioners insist that under the Rules of Court it is the assistant city
prosecutors function as investigating prosecutor in a preliminary investigation to
make his resolution, while it is the chief city prosecutors function to either approve
or disapprove the same. The chief city prosecutor then will get the chance to correct
the errors committed by the investigating prosecutor only after the latters
resolution is submitted to him. In the present case, Villordon, as the investigating
prosecutor, has not yet made any resolution. Thus, petitioners assert that Villordon
committed grave abuse of discretion by unreasonably refusing to file an information
despite the fact that the evidence clearly warrants such action.
On the other hand, respondent Villordon maintains that mandamus is a premature
remedy since the case was not yet submitted for resolution when petitioners filed
an action with the RTC. Villordon contends that after the hearing on 3 February 2005
which none of the parties attended, he was left hanging as to whether the case
should be submitted for resolution. Petitioners failed to submit a Reply-Affidavit
which should have rebutted the Counter-Affidavit filed by Dee. Villordon states that
petitioners opted to just engage in forum-shopping and filed several cases against
him in the RTC and the OMB.
Sections 1 and 2 of Rule 112 of the Revised Rules of Criminal Procedure state:
Section 1. Preliminary investigation defined; when required. 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. x x x

Sec. 2. Officers authorized to conduct preliminary investigations. The following

may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants; x x x
A preliminary investigation is conducted before an accused is placed on trial to
secure the innocent against hasty, malicious, and oppressive prosecution; to protect
him from an open and public accusation of a crime, as well as from the trouble,
expenses, and anxiety of a public trial. It is also intended to protect the State from
having to conduct useless and expensive trials. Thus, a preliminary investigation is
not a mere formal or technical right but is a substantive right. 13
The function of determining whether there is sufficient ground for the filing of the
information is executive in nature and rests with the prosecutor. It is the prosecutor
alone who has the quasi-judicial discretion to determine whether or not a criminal
case should be filed in court.
In the present case, petitioners filed a criminal complaint against Dee with the
Office of the City Prosecutor. After several hearings where Dee did not appear,
Villordon declared the case submitted for resolution. After three months, Dee
showed up and filed a motion to reopen the case and simultaneously submitted his
counter-affidavit. Villordons superior approved the motion. Thereafter, two hearings
were scheduled on different dates. On the first hearing, Dee did not appear but
petitioners were present. Villordon then directed petitioners to file their replyaffidavit on the next hearing to controvert the counter-affidavit submitted by Dee.
However, on the second hearing, Dee and petitioners failed to appear. Since then,
no other action was taken on the matter. Due to the long delay, petitioners filed an
anti-graft and corruption case against Villordon with the OMB and a petition for
mandamus with the RTC. The OMB dismissed the case and the RTC denied the
petition. Petitioners now seek that we reverse the RTCs decision and grant the
extraordinary writ of mandamus to compel Villordon to resolve the preliminary
investigation and file a criminal information against Dee.
Section 3, Rule 65 of the Rules of Court states:
Sec. 3. Petition for Mandamus. When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the

petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent. x x x
The provision clearly defines that mandamus will lie if (1) any tribunal, corporation,
board, officer, or person unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust or station; or unlawfully
excludes another from the use and enjoyment of a right or office to which such
other is entitled; and (2) there is no plain, speedy and adequate remedy in the
ordinary course of law other than the remedy of mandamus being invoked.1avvphi1
In the present case, petitioners insist that mandamus is proper since Villordon
committed grave abuse of discretion by unreasonably refusing to file an information
despite the fact that the evidence indicates otherwise.
We disagree with petitioners. As mentioned earlier, the matter of deciding who to
prosecute is a prerogative of the prosecutor. In Hipos v. Judge Bay,14 we held that
the remedy of mandamus, as an extraordinary writ, lies only to compel an officer to
perform a ministerial duty, not a discretionary one. Mandamus will not issue to
control the exercise of discretion by a public officer where the law imposes upon
him the duty to exercise his judgment in reference to any manner in which he is
required to act, because it is his judgment that is to be exercised and not that of the
court. The only time the discretion of the prosecutor will stand review by mandamus
is when the prosecutor gravely abuses his discretion. 15
Here, due to the non-appearance of Dee on several hearings and the nonsubmission of the reply-affidavit by petitioners, Villordon cannot be faulted if he is
still not convinced that a criminal information should be filed against Dee. Villordon
may need to consider more evidence material to the complaint and is giving both
parties the chance to submit their supporting documents.
Also, the assertion of petitioners that the evidence against Dee is strong, amounting
to grave abuse of discretion on Villordons part in not filing the criminal information,
has not been clearly established. The records show that aside from petitioners bare
declarations, no other proof was submitted.
Moreover, petitioners were not able to sufficiently demonstrate that they had no
other plain, speedy and adequate remedy in order to be entitled to mandamus. A
more expeditious and effective recourse could have been simply to submit their
reply-affidavit in order for Villordon to make the proper determination whether there
was sufficient ground to hold Dee for trial. Instead, petitioners resorted to filing
cases in different fora like the OMB and the RTC to compel Villordon to file the
criminal information against Dee immediately.

In sum, since the institution of a criminal action involves the exercise of sound
discretion by the prosecutor and there being other plain, speedy and adequate
remedies available to petitioners, the resort to the extraordinary writ of mandamus
must fail.
WHEREFORE, we DENY the petition. We AFFIRM the Orders dated 5 January 2006
and 30 May 2006 of the Regional Trial Court of Quezon City, Branch 105, in Civil
Case No. Q-05-56367.
SO ORDERED.

G.R. No. 156183

February 28, 2007

NICASIO I. ALCANTARA, Petitioner

vs.
VICENTE C. PONCE and the PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CORONA, J.:
This is a petition for review on certiorari 1 from a decision2 and resolution3 of the
Court of Appeals (CA).
In 1997, respondent Vicente C. Ponce filed a string of criminal complaints against
petitioner Nicasio I. Alcantara and his family, hereafter the Alcantaras, including one
for estafa against petitioner in the Makati Prosecutors Office docketed as I.S. No.
97-39547. In essence, respondent Ponce alleged that petitioner had swindled him
out of 3,000,000 shares of Floro Cement Corporation.
It was in the course of the preliminary investigation of the complaint for estafa that
respondent Ponce, shortly after giving his sur-rejoinder affidavit, 4 submitted to the
investigating prosecutor a newsletter 5 purporting to be a belated annex to the
affidavit. It was prefaced with the quotation "For every extraordinary fortune there
is a great crime" and the text:
An example is Marcos. We need not discuss this.
Second example is the Alcantaras.
a) Overshipment of log; b) Land grabbing;
c) Corruption of public office; d) Corporate grabbing.
The newsletter then went on to discuss SEC Case No. 2507 which, in the surrejoinder affidavit, respondent Ponce described as being the forefather of all the
cases he had filed against the Alcantaras. In SEC Case No. 2507 which the
Securities and Exchange Commission en banc decided against him, Ponce accused
the Alcantaras of defrauding him of his shares in Iligan Cement Corporation.
On December 3, 1997, petitioner filed a complaint for libel against respondent
Ponce with the Makati Prosecutors Office 6 in connection with the aforesaid
newsletter. He claimed that: (1) the statements therein were defamatory; (2)
respondent had circulated it in the Makati Prosecutors Office and (3) the newsletter

could not be considered an annex to the sur-rejoinder because respondent had not
attached it to the said affidavit but had given it thereafter.
The preliminary investigation was conducted by City Prosecutor Imelda P.
Saulog.1awphi1.net On
March
17,
1998,
Prosecutor
Saulog
issued
a
resolution7 finding probable cause for libel and recommending the filing of an
information8 in court. Thereafter, the case was filed with the Regional Trial Court of
Makati and raffled to Judge Tranquil Salvador of Branch 63.
However, respondent Ponce filed a petition for review with the Secretary of Justice,
who reversed the City Prosecutor in a resolution dated February 28, 2000. 9 This
reversal was based on the finding that the newsletter was a privileged
communication, having been submitted to the investigating prosecutor Benjamin R.
Bautista as an intended annex to respondents sur-rejoinder. The Secretary of Justice
thus directed the withdrawal of the information.
Petitioner filed a motion for reconsideration10 but it was denied.11
Petitioner elevated the matter via petition for certiorari to the CA where it was
docketed as CA-G.R. SP No. 61543. In a decision dated August 29, 2002, the CA
found that the Secretary of Justice committed grave abuse of discretion, set aside
the latters resolution and directed the reinstatement of the criminal case. 12 After
unsuccessfully moving for reconsideration in the Department of Justice, respondent
Ponce attempted to elevate the matter to the Supreme Court by way of a petition
for review on certiorari. The case was docketed as G.R. No. 157105. However, we
denied respondent Ponces motion for extension for time to file his petition 13 as well
as his subsequent motions for reconsideration.
In the meantime, however, before CA-G.R. SP No. 61543 was decided, the Office of
the Makati City Prosecutor, in deference to the resolution of the Justice Secretary,
filed a motion to withdraw information, which the trial court granted on September
28, 2001.14 The trial court ruled that the absence of the essential element of
publicity precluded the commission of the crime of libel. Petitioner moved for
reconsideration of the withdrawal but the trial court denied the motion in an order
dated March 21, 2002.15
On June 17, 2002, petitioner filed another petition for certiorari in the CA, docketed
as CA-G.R. SP No. 71189. In this case, the CA rendered the assailed decision.
The principal question for our consideration is whether or not the CA, in its decision
in CA-G.R. SP No. 71189, gravely erred in finding that Judge Salvador had not
committed grave abuse of discretion for granting the withdrawal of the information
for libel against respondent Ponce.

The crime of libel, as defined in Article 353 of the Revised Penal Code, 16 has the
following elements:
(1) imputation of a crime, vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance;
(2) publicity or publication;
(3) malice;
(4) direction of such imputation at a natural or juridical person, or even a dead
person and
(5) tendency to cause the dishonor, discredit or contempt of the person defamed.
The factual antecedents are undisputed. The only issue is whether or not the
controversial newsletter constituted privileged communication, which would exempt
it from libel.
According to the Special Fifth Division of the CA:
It is a settled principle in this jurisdiction that statements made in the course of
judicial proceedings are absolutely privileged. This absolute privilege remains
regardless of the defamatory tenor and the presence of malice if the same
are relevant, pertinent or material to the cause in hand or subject of the inquiry. The
lone requirement imposed to maintain the cloak of absolute privilege is the test of
relevancy.
In this case, a reading of the Sur-Rejoinder Affidavit, contrary to petitioners
submission, instantly shows that there was sufficient reference to the "newsletter"
which justified the Justice Secretary and respondent Judge in holding that private
respondent actually intended the said article to be included as an annex attached to
said pleading and that the same was merely omitted and belatedly submitted to
Prosecutor Bautista during the preliminary investigation. Such "sufficient reference"
is shown by the fact that the newsletter is about SEC Case No. 2507 the very same
case being discussed by private respondent in pages 8 to 12 of his Sur-Rejoinder
Affidavit and hence, petitioners claim that Annex "F" mentioned together with
Annex "E", both articles showing the "devious maneuvering" of petitioner in the said
case, refers to another article. And even if the supposed Exhibit "F" could refer also
to that article "So The Public May Know," such circumstance will not exclude the
subject "newsletter" as an intended annex to the said pleading as in fact private
respondent explicitly mentioned "articles" without stating that there were only two
(2) particular articles being referred or which of those articles caused to be
published by his counsel.

As the Justice Secretary opined and which position the respondent Judge adopted,
the "newsletter" containing the defamatory statement is relevant and pertinent to
the criminal complaint for estafa then under preliminary investigation. The crime of
estafa involves deceit, dishonesty and other fraudulent acts. The inclusion in the
Sur-Rejoinder Affidavit of the "newsletter" discussing the alleged "corporate
grabbing" by petitioner will tend to support private respondents case of estafa
against petitioner insofar as such alleged "corporate grabbing" will highlight or
manifest petitioners propensity for dishonest dealing or fraudulent machinations.
There is therefore no doubt that the subject "newsletter" is relevant and pertinent to
the criminal complaint for estafa, and hence the same comes within the protective
cloak of absolutely privileged communications as to exempt private respondent
from liability for libel or damages.
In determining the issue of relevancy of statements made in judicial proceedings,
courts have adopted a liberal attitude by resolving all doubts in favor of relevancy.
Thus, in People vs. Aquino, our Supreme Court has emphasized that "it is the rule
that what is relevant or pertinent should be liberally construed to favor the writer,
and the words are not to be scrutinized with microscopic intensity. The doctrine of
privileged communication has a practical purpose.
xxx xxx xxx
Publication in libel means making the defamatory matter, after it has been written,
known to someone other than the person to whom it has been written. There is
publication if the material is communicated to a third person. What is material is
that a third person has read or heard the libelous statement, for "a mans reputation
is the estimate in which others hold him, not the good opinion which he has of
himself." Our Supreme Court has established the rule that when a public officer, in
the discharge of his or her official duties, sends a communication to another officer
or to a body of officers, who have a duty to perform with respect to the subject
matter of the communication, such communication does not amount to publication.
Applying this rule by analogy to the present case, private respondents submission
of the "newsletter" intended as an annex to his Sur-Rejoinder Affidavit in I.S. No. 9739547 to Prosecutor Bautista who was then conducting the preliminary investigation
in said case, does not amount to publication for the reason that the sending of such
material was made specifically for the purpose of including the same as evidence in
the preliminary investigation. That such submission was belatedly made does not
take out the material from the absolutely privileged communication rule. Prosecutor
Bautista had a legal duty to perform with respect to the subject communication,
which is to consider the same along with the other evidence submitted by private
respondent as complainant in I.S. no. 97-39547, in determining the existence of
probable cause for the commission of the crime of estafa and that petitioner as
accused-defendant therein should be tried for such offense. Under the
circumstances and in the lawful exercise of private respondents right to present

evidence in support of his accusations against petitioner in the criminal complaint

for estafa, We fail to see how such submission of documentary evidence omitted
from the annexes to the Sur-Rejoinder Affidavit, could amount to publication that
would give rise to private respondents liability for a libel charge especially when
there is no proof of the alleged circulation of copies of the subject "newsletter"
except to the City Prosecutors Office of Makati wherein I.S. No. 97-39547 was then
in the preliminary investigation stage. Petitioners feeble argument that Prosecutor
Bautista remains a third person because the subject "newsletter" was never
included or formally offered as evidence, hardly convinces Us to hold that there was
actual publication for purpose of finding a prima facie case for libel against the
private respondent. He must be reminded that the case for estafa was still at the
preliminary investigation stage and there is no requirement of a "formal offer" of
such documentary evidence or supporting documents to establish probable cause
(citations omitted).17
Since the newsletter was presented during the preliminary investigation, it was
vested with a privileged character. While Philippine law is silent on the question of
whether the doctrine of absolute privilege extends to statements made in
preliminary investigations or other proceedings preparatory to the actual trial, the
U.S. case of Borg v. Boas18 makes a categorical declaration of the existence of such
protection:
It is hornbook learning that the actions and utterances in judicial proceedings so far
as the actual participants therein are concerned and preliminary steps leading
to judicial action of an official nature have been given absolute
privilege. Of particular interest are proceedings leading up to prosecutions or
attempted prosecutions for crime xxx [A] written charge or information filed with
the prosecutor or the court is not libelous although proved to be false and
unfounded. Furthermore, the information given to a prosecutor by a private person
for the purpose of initiating a prosecution is protected by the same cloak of
immunity and cannot be used as a basis for an action for defamation. (Emphasis
ours)
The ruling in Borg is persuasive in this jurisdiction. We see no reason why we should
not adopt it.
Furthermore, the newsletter qualified as "a communication made bona fide upon
any subject-matter in which the party communicating has an interest . . . made to a
person having a corresponding interest or duty, although it contained
[in]criminatory matter which without this privilege would be slanderous and
actionable."19
While the doctrine of privileged communication can be abused, and its abuse can
lead to great hardships, to allow libel suits to prosper strictly on this account will

give rise to even greater hardships. The doctrine itself rests on public policy which
looks to the free and unfettered administration of justice. 20 It is as a rule applied
liberally.21
The one obstacle that those pleading the defense of privileged communication must
hurdle is the test of relevancy. Under this test, a matter alleged in the course of the
proceedings need not be in every case material to the issues presented but should
be legitimately related to the issues or be so pertinent to the controversy that it
may become the subject of inquiry in the course of trial. 22
Here, the controversial statements were made in the context of a criminal complaint
against petitioner, albeit for other, separate acts involving greed and deceit, and
were disclosed only to the official investigating the complaint. Liberally applying the
privileged communication doctrine, these statements were still relevant to the
complaint under investigation because, like the averments therein, they also
involved petitioners alleged rapacity and deceitfulness.
WHEREFORE, the instant petition is hereby DENIED and the September 13, 2002
decision and November 21, 2002 resolution of the Court of Appeals in CA-G.R. SP
No. 71189 AFFIRMED.
Costs against petitioner.
SO ORDERED.

[G.R. No. 130399. September 20, 2001]

PUBLIC UTILITIES DEPARTMENT, OLONGAPO CITY, petitioner, vs. HON.
TEOFISTO T. GUINGONA, JR., Secretary of the Department of Justice, and
CONRADO L. TIU, respondents.
DECISION
BUENA, J.:
This is a petition for review of the Decision of the Court of
Appeals[1] promulgated on August 22, 1997 in CA-G.R. SP No. 39689, which affirmed
the Resolution dated November 6, 1995 of respondent Secretary of Justice Teofisto
Guingona which directed the Acting City Prosecutor of Olongapo City to move for
the withdrawal of the informations against the respondent for theft of electricity in
relation to P.D. 401, if the same were already filed in court, xxx.
The antecedent facts of the case are undisputed:
Private respondent Conrado L. Tiu is the owner and manager of Contis Plaza, a
supermarket located at Rizal Avenue corner 21st Street, Olongapo City, and another
establishment located at No. 46 Fendler Street, East Tapinac, Olongapo City. The
electric power consumption of private respondent is supplied by petitioner Public
Utilities Department.
Petitioner claimed that pursuant to its Power Loss Reduction Program,
implemented with the assistance of Meralco, a digital recording ammeter, or load
logger, was installed on November 25, 1992 at the primary line of Contis Plaza to
monitor its actual power utilization. It was later discovered that the KWH electric
meter of Contis Plaza failed to register the actual amount of its power
consumption. The power loss to petitioner was computed at 86.08%. For the
purpose of pinpointing the source of the power loss, private respondent was
informed by petitioner that the KWH electric meter, current transformers and
metering facilities of Contis Plaza would be inspected.
The inspection was done on March 3, 1993 in the presence of private
respondent Tius operations manager and lawyer. Meralco meter test crew checked
the two (2) current transformers installed outside of Contis Plaza using state-of-theart phase angle test apparatus. The test showed that the polarity markings on the
terminals of one of the two (2) current transformers were reversed or
interchanged. This
would
counter-act
the
current
of
the
other
transformer. Consequently, the effective registration of the KWH electric meter of
Contis Plaza was only 10.71% with the corresponding power loss to the herein

petitioner of 89.29%. When corrections were made, the KWH electric meter
reflected the correct amount of electric consumption at Contis Plaza. The
unregistered consumption at Contis Plaza for the billing period from November 8,
1988 until February, 1993, was pegged and valued in the amount of
P9,364,267.00. Despite repeated demands to pay the said amount, respondent Tiu
failed and refused to pay the same.
On March 17, 1993, the KWH electric meter installed at respondent Tius building
located at No. 46 Fendler Street, East Tapinac, Olongapo City, was found to register
0-0 consumption. After a thorough inspection, it was discovered that the potential
link of the KWH meter installed at the second floor of the said building was
disengaged. The KWH meter thus did not register any consumption.
Subsequently, petitioner filed a complaint for violation of City Ordinance No. 23,
Series of 1989, and of Presidential Decree No. 401 for theft of electricity against
private respondent.
After preliminary investigation, the office of the State Prosecutor dismissed the
complaint.
On appeal, then Acting Secretary of the Department of Justice Demetrio
Demetria concurred with the office of the State Prosecutors findings that the
violation of City Ordinance No. 23 had prescribed but found sufficient evidence to
hold private respondent liable for theft of electricity. [2] Upon private respondents
filing of a motion for reconsideration, respondent Secretary of Justice reversed [3] the
said ruling and directed the withdrawal of the information against private
respondent for theft of electricity. This prompted petitioner to file a petition for
certiorari with the Court of Appeals.
On August 22, 1997, the Court of Appeals promulgated its decision dismissing
the petition for lack of merit. Hence, the present petition.
The only issue in this case is whether or not the Court of Appeals erred in ruling
that the respondent Secretary of Justice did not commit grave abuse of discretion in
issuing the Resolution of November 6, 1995.
Petitioner alleges that the Court of Appeals committed grave and serious
reversible error in dismissing the petition for certiorari since the petitioner has
established a prima facie case to prosecute private respondent for two (2) counts of
theft of electricity.
Petitioner argues that the purpose of a preliminary investigation is not to
determine whether the accused is guilty beyond reasonable doubt of the crime
charged, but merely whether there existed a probable cause for his prosecution, i.e.,

whether there is sufficient ground to engender a well-founded belief that a crime

has been committed; that the respondent is probably guilty thereof and should be
held for trial. Petitioner submits that it is sufficient to adduce evidence which
inclines the mind to believe, without necessarily leaving room for doubt, that the
accused is guilty of a crime and should be held for trial.
In support of its petition, petitioner cites then Acting Secretary of Justice
Demetrio G. Demetrias resolution, to wit:
Assuming there is no direct proof that respondent caused the tampering of the
electric meters either by disengaging the polarity thereof or causing the
unauthorized electrical connections, there is ample circumstantial evidence to prove
his culpability. Thus, circumstantial evidence is sufficient for conviction if: (a) there
is more than one circumstance; (b) the facts from which the inference are derived
are proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt. (Section 5, Rule 133, Revised Rules of Court).
The following circumstances have been shown, to wit:
In I.S. No. 339
1. That respondent provided the required electric meters and current transformers
(CTs) installed at his business premises;
2. That complainants installation crew simply followed the standard metering
principle in connecting the current transformers to the KWH meter as respondents
technicians prepared all electrical connections;
3. That it was discovered by the MERALCO meter test crew that the two CTs had
their polarity markings tampered, resulting in that the tampered marking of the
polarity of the CTs led to a wrong connection of the KWH meter which, consequently,
registered a 10.71% electric consumption only, with a power loss of 89.29% to
complainant;
4. That after the wiring connection was reversed, the rotation pace of the meter
increased to almost 675%;
In I.S. No. 506, aside from the first and second circumstances above-mentioned,
additional circumstances were also noted, thus:
1. That when inspected by complainants team, meter No. 26439328 reflected zero
consumption;

2. That the potential link in the said electric meter at the second floor was
disengaged resulting in the meter not registering any electric consumption;
3. That respondent transferred the load of his appliances and equipment from the
first floor of the building to the second floor where the tampered meter is located;
4. That when complainants team disconnected the loadside of the meter, a spark
was produced, indicating that there were loads attached to the tampered meter;
5. That an inventory of the electrical connections to the tampered meter revealed
that respondent installed electrical connections without the consent of complainant,
the electrical consumption of the connections thereby not being reflected in the
tampered meter.
The above-enumerated unbroken chain of events leads to the unmistakable
conclusion that respondent, to the exclusion of others, was the author of the crime.
[4]

Petitioner further argues that it is not necessary to prove directly that

respondent Tiu did the tampering himself for a contrary rule would make the
prosecution of power theft and pilferage next to impossible.
After a careful examination of the assailed decision and resolutions, and the
pleadings filed by both parties, the Court finds the instant petition to be without
merit.
The holding of a preliminary investigation is a function of the Executive
Department and not of the Judiciary. [5] The primary objective of a preliminary
investigation is to free a respondent from the inconvenience, expense, ignominy
and stress of defending himself/herself in the course of a formal trial, until the
reasonable probability of his or her guilt has been passed upon in a more or less
summary proceeding by a competent officer designated by law for that
purpose. Secondly, such summary proceeding also protects the state from the
burden of unnecessary expense and effort in prosecuting alleged offenses and in
holding trials arising from false, frivolous or groundless charges. [6] The decision
whether or not to dismiss the complaint against private respondent is necessarily
dependent on the sound discretion of the prosecuting fiscal and, ultimately, that of
the Secretary of Justice.[7]
Decisions or resolutions of prosecutors are subject to appeal to the Secretary of
Justice who, under the Revised Administrative Code, exercises the power of direct
control and supervision over said prosecutors; and who may thus affirm, nullify,
reverse or modify their rulings.[8]

When the respondent Secretary of Justice, in his Resolution of November 6,

1995, reversed the findings of Acting Secretary of Justice Demetria, in the
Resolution dated May 18, 1995, it was done in the exercise of his power of review,
which rests upon his sound discretion.
The Resolution of the Secretary of Justice may be reviewed by the
court. However, the court is without power to directly decide matters over which full
discretionary authority has been delegated to the legislative or executive branch of
the government. It is not empowered to substitute its judgment for that of the
Congress or of the President when they did not act in 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.[9]
This Court finds that the Court of Appeals did not err in ruling that the
respondent Secretary of Justice did not act in grave abuse of discretion in directing
the Acting City prosecutor of Olongapo City to move for the withdrawal of the
informations against the private respondent for theft of electricity.
Findings of the Secretary of Justice are not subject to review unless shown to
have been made with grave abuse.[10]
In its Resolution,
ratiocination:

respondent

Secretary

of

Justice

made

the

following

We could not lend credence to the claim of the complainant that respondent stole
electricity in view of the findings of the Meralco meter test crew that the polarity
markings of the terminals of one of the current transformers were reversed or
interchanged. The assumption derived from this finding is hardly persuasive. Even
after the correction of the perceived defect in the current transformers, there was
no material and substantial increase in the KWH consumption of the respondent.
xxx the respondent cannot be faulted for the reversed or interchanged polarity
markings. The current transformers, prior to their installation, were duly verified,
tested and examined by authorized personnel of the complainant. They were
installed after they were verified to be fit for service and were approved for
connection on 4 October 1988 by the complainant. The respondent, therefore, could
not have caused the reversal or the interchange of the markings. In fact, the
witness for the complainant, Mr. Jose Ricky V. Tan, even stated that since the current
transformer were old, he could not determine if the polarity markings were changed
or not.

xxx Thus, we affirmed your findings that:

x x x. As correctly pointed out by respondent, it is not possible for him to disconnect
the potential link after its installation because there would be some initial reading
that will be registered. Since the reading is 0-0 from the time of its installation up to
the time it was discovered on March 17, 1993, the only logical explanation for the 00 reading is that the potential link was never engaged/connected when the new
meter was installed. This is buttressed by the fact that when the subject electric
meter was inspected on March 17, 1993, the seal was still intact and there is no
evidence of tampering. Whoever initially installed said electric meter failed to
connect the potential link before covering or sealing the meter. Certainly, we cannot
blame respondent for the inefficiency or incompetence of others. The fact that it
was respondent who informed the PUD (complainant) that one of his electric meters
has a 0-0 reading after receiving his monthly billing negates bad faith or deliberate
intent on the part of the respondent to violate P.D. 401. [11]
Comparing the alleged circumstantial evidence enumerated by the petitioner
and the ratiocination made by the respondent Secretary of Justice, the Court finds
that no sufficient evidence of guilt and noprima facie case has been presented by
petitioner to compel the fiscal to prosecute the case of theft of electricity against
private respondent.
In Quiso vs. Sandiganbayan,[12] this Court 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 xxx 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."
We reiterate the ruling of this Court in Quiso vs. Sandiganbayan[13] and
in Jacob vs. Puno,[14] that certiorari will not lie to compel the respondent Secretary
of Justice to file a case if he thinks the evidence does not warrant it. Otherwise, he
will be committing a dereliction of duty.
WHEREFORE, there being no showing of grave abuse of discretion on the part
of public respondent which would warrant the overturning of its decision, the instant
petition is DISMISSED and the assailed Decision of the Court of Appeals is hereby
AFFIRMED.
SO ORDERED.

SANTOS v Go

For our review on certiorari is the Decision [1] dated September 2, 2002 of the Court
of Appeals in CA-G.R. SP No. 67388, as well as its Resolution [2] dated November 12,
2002, denying petitioners motion for reconsideration. The appellate court dismissed
the petition for review under Rule 43 [3] of the 1997 Rules of Civil Procedure for being
an erroneous mode of appeal from the Resolution [4] of the Secretary of Justice. The
Secretary had modified the Resolution[5] of the Office of the City Prosecutor of Pasig
City in I.S. No. PSG 00-04-10205 and directed the latter to file an information for
estafa against petitioners.
The petitioners are corporate directors and officers of Fil-Estate Properties,
Inc. (FEPI).
On October 17, 1995, FEPI allegedly entered into a Project Agreement with
Manila Southcoast Development Corporation (MSDC), whereby FEPI undertook to
develop several parcels of land in Nasugbu, Batangas allegedly owned by MSDC.
Under the terms of the Agreement, FEPI was to convert an approximate area of
1,269 hectares into a first-class residential, commercial, resort, leisure, and
recreational complex. The said Project Agreement clothed FEPI with authority to
market and sell the subdivision lots to the public.
Respondent Wilson Go offered to buy Lot 17, Block 38 from FEPI. Lot 17
measured approximately 1,079 square meters and the purchase price agreed upon
wasP4,304,000. The Contract to Sell signed by the parties was the standard, printed
form prepared by FEPI. Under the terms of said contract of adhesion, Go agreed to
pay a downpayment of P1,291,200 and a last installment of P840,000 on the
balance due on April 7, 1997. In turn, FEPI would execute a final Deed of Sale in
favor of Go and deliver to Go the owners duplicate copy of Transfer Certificate of
Title (TCT) upon complete payment of the purchase price.
Go fully complied with the terms of the Contract. FEPI, however, failed to
develop the property. Neither did it release the TCT to Go. The latter demanded
fulfillment of the terms and conditions of their agreement. FEPI balked. In several
letters to its clients, including respondent Go, FEPI explained that the project was
temporarily halted due to some claimants who opposed FEPIs application for
exclusion of the subject properties from the coverage of the Comprehensive
Agrarian Reform Law (CARL). Further, FEPIs hands were tied by a cease and desist
order issued by the Department of Agrarian Reform (DAR). Said order was the
subject of several appeals now pending before this Court. FEPI assured its clients
that it had no intention to abandon the project and would resume developing the
properties once the disputes had been settled in its favor.

Go was neither satisfied nor assured by FEPIs statements and he made

several demands upon FEPI to return his payment of the purchase price in full.
FEPI failed to heed his demands. Go then filed a complaint before the Housing and
Land Use Regulatory Board (HLURB). He likewise filed a separate ComplaintAffidavit for estafa under Articles 316 [6] and 318[7] of the Revised Penal Code before
the Office of the City Prosecutor of Pasig City against petitioners as officers of FEPI.
The complaint for estafa averred that the Contract to Sell categorically stated that
FEPI was the owner of the property. However, before the HLURB, FEPI denied
ownership of the realty. Go alleged that the petitioners committed estafa when they
offered the subject property for sale since they knew fully well that the development
of the property and issuance of its corresponding title were impossible to
accomplish, as the ownership and title thereto had not yet been acquired and
registered under the name of FEPI at the time of sale. Thus, FEPI had grossly
misrepresented itself as owner at the time of the sale of the subject property to him
and when it received from him the full payment, despite being aware that it was not
yet the owner.
Petitioners challenged the jurisdiction of the City Prosecutor of Pasig City to
conduct the preliminary investigation on the ground that the complainant was not
from Pasig City, the contract was not executed nor were the payments made in
Pasig City. Besides, countered petitioners, none of the elements of estafa under
Articles 316 and 318 were present. They averred that FEPI was not the owner of the
project but the developer with authority to sell under a joint venture with MSDC,
who is the real owner. They further denied that FEPI ever made any written nor oral
representation to Go that it is the owner, pointing out that Go failed to positively
identify who made such misrepresentation to him nor did Go say where the
misrepresentation was made. According to petitioner, there being neither deceit nor
misrepresentation, there could be no damage nor prejudice to respondent, and no
probable cause exists to indict the petitioners. Petitioners likewise insisted that they
could not be held criminally liable for abiding with a cease-and-desist order of the
DAR.
In his reply, Go stressed that the City Prosecutor of Pasig City had jurisdiction
over the case. He argued that the Contract to Sell specifically provided that
payment be made at FEPIs office at Pasig City and the demand letters bore the
Pasig City address. He averred that FEPI could not disclaim ownership of the project
since the contract described FEPI as owner without mentioning MSDC. Additionally,
the acts executed by FEPI appearing in the contract were the acts of an owner and
not a mere developer.
After the preliminary investigation, the City Prosecutor resolved to dismiss the
complaint for estafa, thus:
Wherefore, the case for estafa, under Articles 316 and 318 of
the Revised Penal Code, filed against the respondents Ferdinand

Santos, Robert [John] Sobrepea, Federico Campos, Polo Pantaleon and

Rafael Perez de Tagle, Jr. is dismissed for insufficiency of evidence. [8]
The City Prosecutor found no misrepresentation stating that, (1) the Contract
to Sell did not mention FEPI as the owner of the property; (2) since no Deed of Sale
had been executed by the parties, then petitioners are not yet bound to deliver the
certificate of title since under both the Contract to Sell and Section 25 [9] of
Presidential Decree No. 957,[10] FEPI was bound to deliver the certificate of title only
upon the execution of a contract of sale; and (3) the City Prosecutor disavowed any
jurisdiction since it is the HLURB, which has exclusive jurisdiction over disputes and
controversies involving the sale of lots in commercial subdivision including claims
involving refunds under P.D. No. 1344. [11]
Go appealed the City Prosecutors Resolution to the Department of Justice
(DOJ), which, in turn reversed the City Prosecutors findings, and held, to wit:
WHEREFORE, the questioned resolution is hereby MODIFIED. The
City Prosecutor of Pasig City is directed to file an information for estafa
defined and penalized under Art. 316, par. 1 of the Revised Penal Code
against respondents Ferdinand Santos, Robert [John] Sobrepea,
Federico Campos, Polo Pantaleon and Rafael Perez De Tagle, Jr. and
report the action taken within ten (10) days from receipt hereof.
SO ORDERED.[12]
The DOJ found that there was a prima facie basis to hold petitioners liable for estafa
under Article 316 (1) of the Revised Penal Code, pointing out that the elements of
the offense were present as evidenced by the terms of the Contract to Sell. It ruled
that under the Contract, the petitioners sold the property to Go despite full
knowledge that FEPI was not its owner. The DOJ noted that petitioners did not deny
the due execution of the contract and had accepted payments of the purchase price
as evidenced by the receipts. Thus, FEPI was exercising acts of ownership when it
conveyed the property to respondent Go. Acts to convey, sell, encumber or
mortgage real property are acts of strict ownership. Furthermore, nowhere did FEPI
mention that it had a joint venture with MSDC, the alleged true owner of the
property. Clearly, petitioners committed acts of misrepresentation when FEPI denied
ownership after the perfection of the contract and the payment of the purchase
price. Since a corporation can only act through its agents or officers, then all the
participants in a fraudulent transaction are deemed liable.
Accordingly, an Information for estafa was filed against petitioners and
Federico Campos and Polo Pantaleon before the MTC of Pasig City. However, the
arraignment was deferred since Campos and Pantaleon filed a Motion for Judicial
Determination of Probable Cause, which was granted by the trial court. Meanwhile
petitioners herein filed with the Court of Appeals, a petition for review docketed as

CA-G.R. SP No. 67388. Accordingly, the trial court deferred the arraignment of
petitioners until the petition for review was resolved.
On September 2, 2002, the appellate court disposed of CA-G.R. SP No. 67388
in this wise:
WHEREFORE, foregoing premises considered, the Petition,
HAVING NO MERIT, is hereby DENIED DUE COURSE AND ORDERED
DISMISSED, with cost to Petitioners.
SO ORDERED.[13]
The appellate court opined that a petition for review pursuant to Rule 43 cannot be
availed of as a mode of appeal from the ruling of the Secretary of Justice because
the Rule applies only to agencies or officers exercising quasi-judicial functions. The
decision to file an information or not is an executive and not a quasi-judicial
function.
Herein petitioners seasonably moved for reconsideration, but the motion was
likewise denied by the Court of Appeals.
Hence, this petition based on the following grounds:
(1) THE COURT OF APPEALS ERRED IN RULING THAT RULE 43 OF THE
1997 RULES OF CIVIL PROCEDURE CANNOT BE AVAILED OF TO
APPEAL THE RESOLUTIONS OF THE SECRETARY OF JUSTICE. [14]
(2) THE DOJ SECRETARY ERRED WHEN IT FOUND PROBABLE CAUSE
AND RESOLVED TO FILE AN INFORMATION FOR ESTAFA UNDER
ART. 316, SEC. 1 OF THE REVISED PENAL CODE AGAINST
PETITIONERS, CONSIDERING THAT: (A) Petitioners did not
pretend that they, or FEPI, were the owners of the subject
property; (B) FEPI need not have been the owner at the time the
Contract to Sell was furnished to respondent Go; (C) There was
no prejudice caused to respondent Go; (D) There is no personal
act or omission constituting a crime ascribed to any of the
Petitioners, therefore, there can be no probable cause against
them; and (E) There was no deceit or even intent to deceive. [15]
To our mind, the sole issue for resolution is whether a petition for review
under Rule 43 is a proper mode of appeal from a resolution of the Secretary of
Justice directing the prosecutor to file an information in a criminal case. In the
course of this determination, we must also consider whether the conduct of
preliminary investigation by the prosecutor is a quasi-judicial function.

Petitioners submit that there is jurisprudence to the effect that Rule 43 covers
rulings of the Secretary of Justice since during preliminary investigations, the DOJs
decisions are deemed as awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions,
and its prosecutorial offices are considered quasi-judicial bodies/officers performing
quasi-judicial functions.
Respondent counters that the herein petition is a dilatory tactic and
emphasizes that injunction will not lie to restrain criminal prosecution.
Rule 43 of the 1997 Rules of Civil Procedure clearly shows that it governs
appeals to the Court of Appeals from decisions and final orders or resolutions of the
Court of Tax Appeals or quasi-judicial agencies in the exercise of their quasi-judicial
functions. The Department of Justice is not among the agencies [16] enumerated in
Section 1 of Rule 43. Inclusio unius est exclusio alterius.
We cannot agree with petitioners submission that a preliminary investigation
is a quasi-judicial proceeding, and that the DOJ is a quasi-judicial agency exercising
a quasi-judicial function when it reviews the findings of a public prosecutor
regarding the presence of probable cause.
In Bautista v. Court of Appeals,[17] we held that a preliminary investigation is
not a quasi-judicial proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine the
guilt or innocence of the accused. He does not exercise adjudication
nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons
who may be reasonably charged with a crime and to enable the fiscal
to prepare his complaint or information. It is not a trial of the case on
the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof. While the fiscal makes that
determination, he cannot be said to be acting as a quasi-court, for it is
the courts, ultimately, that pass judgment on the accused, not the
fiscal.[18]
Though some cases[19] describe the public prosecutors power to conduct a
preliminary investigation as quasi-judicial in nature, this is true only to the extent
that, like quasi-judicial bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court, and the similarity ends at
this point.[20] A quasi-judicial body is as an organ of government other than a court
and other than a legislature which affects the rights of private parties through either
adjudication or rule-making.[21] A quasi-judicial agency performs adjudicatory

functions such that its awards, determine the rights of parties, and their decisions
have the same effect as judgments of a court. Such is not the case when a public
prosecutor conducts a preliminary investigation to determine probable cause to file
an information against a person charged with a criminal offense, or when the
Secretary of Justice is reviewing the formers order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not one of those agencies
whose decisions, orders or resolutions are appealable to the Court of Appeals under
Rule 43, the resolution of the Secretary of Justice finding probable cause to indict
petitioners for estafa is, therefore, not appealable to the Court of Appeals via a
petition for review under Rule 43. Accordingly, the Court of Appeals correctly
dismissed petitioners petition for review.
Notwithstanding that theirs is a petition for review properly under Rule 45,
petitioners want us to reverse the findings of probable cause by the DOJ after their
petition for review under Rule 43 from the court a quo failed. This much we are not
inclined to do, for we have no basis to review the DOJs factual findings and its
determination of probable cause.
First, Rule 45 is explicit. This mode of appeal to the Supreme Court covers
the judgments, orders or resolutions of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or any authorized court and should raise only pure
question of law. The Department of Justice is not a court.
Also, in this petition are raised factual matters for our resolution, e.g. the
ownership of the subject property, the existence of deceit committed by petitioners
on respondent, and petitioners knowledge or direct participation in the Contract to
Sell. These are factual issues and are outside the scope of a petition for review on
certiorari. The cited questions require evaluation and examination of evidence,
which is the province of a full-blown trial on the merits.
Second, courts cannot interfere with the discretion of the public prosecutor in
evaluating the offense charged. He may dismiss the complaint forthwith, if he finds
the charge insufficient in form or substance, or without any ground. Or, he may
proceed with the investigation if the complaint in his view is sufficient and in proper
form.[22] The decision whether to dismiss a complaint or not, is dependent upon the
sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary of
Justice.[23] Findings of the Secretary of Justice are not subject to review unless made
with grave abuse of discretion. [24] In this case, petitioners have not shown sufficient
nor convincing reason for us to deviate from prevailing jurisprudence.
WHEREFORE, the instant petition is DENIED for lack of merit. The Decision
and the Resolution of the Court of Appeals in CA-G.R. SP No. 67388, dated

September 2, 2002 and November 12, 2002, respectively, are AFFIRMED. Costs
against petitioners. SO ORDERED.

DE OCAMPO V SEC. OF JUSTICE

The Case

This petition for certiorari[1] assails the Resolutions dated 15 September 2000 and
19 April 2001 of the Secretary of the Department of Justice (DOJ Secretary) in I.C.
No. 99-6254.[2] The DOJ Secretary[3] denied Laila G. De Ocampos (petitioner) petition
for review of the investigating prosecutors finding of probable cause against her for
homicide[4] in relation to Section 10(a), Article VI of Republic Act No. 7610 (RA 7610)
[5]
and for violation of the same provision of RA 7610. The DOJ Secretary [6] also
denied petitioners motion for reconsideration.

The Facts

The present case arose from a sworn statement of respondent Magdalena B.

Dacarra (Magdalena) executed before the Womens Desk of the CPD Police Station in
Batasan Hills, Quezon City on 10 December 1999. Magdalena stated that on 4
December 1999, her nine-year-old son Ronald complained of dizziness upon arriving
home at about six in the evening. Ronald then vomited, prompting Magdalena to
ask what happened. Ronald replied that petitioner, who was Ronalds teacher,
banged his head against that of his classmate Lorendo Orayan (Lorendo).
Magdalena inspected Ronalds head and saw a woundless contusion. Due to Ronalds
continued vomiting, Magdalena brought him to a quack doctor (arbularyo) on 5
December 1999. The following morning, Magdalena brought Ronald to the East
Avenue Medical Center where he underwent an x-ray. The attending physician
informed Magdalena that Ronalds head had a fracture. Blood oozed out of Ronalds
nose before he died on 9 December 1999.

Lorendo also executed a sworn statement narrating how petitioner banged his head
against Ronalds.

During the inquest proceedings on 14 December 1999, Assistant Quezon City

Prosecutor Maria Lelibet Sampaga (inquest prosecutor) ruled as follows:

Evidence warrants the release of the respondent for further

investigation of the charges against her. The case is not proper for
inquest as the incident complained of happened on December 4, 1999.
Further, we find the evidence insufficient to support the charge for
homicide against the respondent. There is no concrete evidence to
show proof that the alleged banging of the heads of the two minor
victims could be the actual and proximate cause of the death of minor
Ronald Dacarra y Baluton. Besides, the police report submitted by the
respondent in this case states that said victim bears stitches or sutures
on the head due to a vehicular accident. There is no certainty,
therefore, that respondents alleged wrongdoing contributed or caused
the death of said victim.[7]

Subsequently, the case was referred to Assistant Quezon City Prosecutor

Lorna F. Catris-Chua Cheng (investigating prosecutor) for preliminary investigation.
She scheduled the first hearing on 6 January 2000.

Respondent Erlinda P. Orayan (Erlinda), Lorendos mother, attended the

hearing of 6 January 2000 and alleged that petitioner offered her P100,000, which
she initially accepted, for her and her sons non-appearance at the preliminary
investigation. Erlinda presented the money to the investigating prosecutor.

On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging

incident, and Melanie Lugales, who claimed to be another victim of petitioners
alleged cruel deeds, filed their sworn statements with the Office of the Quezon City
Prosecutor.

On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked

the disposition of the inquest prosecutor finding insufficient evidence to support the
charges against her. Petitioner assailed the omission in Magdalenas sworn
statement about Ronalds head injury due to a vehicular accident in November 1997.
Petitioner pointed out the absence of damage or injury on Lorendo as borne out by
his medical certificate. Petitioner contended that the head-banging incident was not
the proximate cause of Ronalds death, but the failed medical attention or medical
negligence. Petitioner also alleged that Jennilyn Quirong and Melanie Lugales have
immature perception. Petitioner further asserted that the causes of death stated in
Ronalds Death Certificate are hearsay and inadmissible in the preliminary
investigation.

Ronalds Death Certificate shows the immediate cause of his death as Cardio
Pulmonary Arrest, the underlying cause as Cerebral Edema, and other significant
conditions contributing to death as Electrolyte imbalance and vomiting. The Autopsy
Report, obtained by the investigating prosecutor from the PNP Crime Laboratory in
Camp Crame, states the cause of death as Intracranial hemorrhage secondary to
traumatic injury of the head.

The investigating prosecutor issued a Resolution finding probable cause against

petitioner for the offenses charged. The dispositive portion of the Resolution reads:

WHEREFORE, in view of the foregoing, it is respectfully recommended

that [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10
of R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail
recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A.
7610 provides that:

For purposes of this Act, the penalty for the commission of

acts punishable under Articles 248, 249, 262, par. 2 and
263, par. 1 Act No. 3815, as amended, the Revised Penal
Code, for the crimes of murder, homicide, other
intentional
mutilation
and serious physical
injuries,

respectively, shall be reclusion perpetua when the victim

is under twelve (12) years of age.

Bail recommended: No bail recommended Homicide, in relation to Art.

VI, Sec. 10, R.A. 7610; and Twenty Thousand pesos
(P20,000.00) Viol. of Sec. 10(a) of R.A. 7610[8]

Consequently, petitioner filed a petition for review with the DOJ.

In her appeal to the DOJ, petitioner contended that the investigating

prosecutor showed bias in favor of complainants Magdalena and Erlinda
(complainants) for not conducting a clarificatory hearing and unilaterally procuring
the autopsy report. Petitioner argued that the investigating prosecutor erred in
concluding that her alleged act of banging Ronald and Lorendos heads was the
cause of Ronalds injury and that such was an act of child abuse. Petitioner also
alleged that it is the Office of the Ombudsman which has jurisdiction over the case,
and not the Quezon City Prosecutors Office.

The Resolution of the DOJ Secretary

The DOJ Secretary denied the petition for review. The DOJ Secretary held that there
was no bias in complainants favor when the investigating prosecutor did not
conduct a clarificatory hearing and unilaterally procured the autopsy report as
nothing precluded her from doing so.

The DOJ Secretary upheld the investigating prosecutors finding that Ronalds injury
was the direct and natural result of petitioners act of banging Ronald and Lorendos
heads. The DOJ Secretary stated that petitioner never denied such act, making her
responsible for all its consequences even if the immediate cause of Ronalds death
was allegedly the failed medical attention or medical negligence. The DOJ Secretary
held that assuming there was failure of medical attention or medical negligence,

these inefficient intervening causes did not break the relation of the felony
committed and the resulting injury.

The DOJ Secretary rejected petitioners claim that she is innocent as held by the
inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely
recommended petitioners release for further investigation since the case was not
proper for inquest and the evidence was then insufficient.

The DOJ Secretary further stated that the omission in Magdalenas sworn statement
about Ronalds head injury due to a vehicular accident in November 1997 and the
absence of any injury on Lorendo are inconsequential.

Moreover, the DOJ Secretary ruled that whether the statements of the causes of
death in the death certificate and autopsy report are hearsay, and whether Jennilyn
Quirong and Melanie Lugales have immature perception, are evidentiary matters
which should be determined during trial. The DOJ Secretary also sustained the
investigating prosecutors conclusion that the banging of Ronald and Lorendos heads
is an act of child abuse.

Petitioner filed a motion for reconsideration[9] which the DOJ Secretary denied in his
Resolution dated 19 April 2001.[10]

Hence, this petition.

The Issues

Petitioner raises the following issues:

1.

Whether petitioner was denied due process during the preliminary

investigation; and

2. Whether there is probable cause against petitioner for homicide under Article
249 of the Revised Penal Code in relation to Section 10(a), Article VI of RA
7610 and for violation of Section 10(a), Article VI of RA 7610.

The Ruling of the Court

The petition lacks merit.

Before resolving the substantive issues in this case, the Court will address the
procedural issue raised by the Office of the Solicitor General (OSG).
[11]
The OSG contends that instead of Rule 65, Rule 43 is applicable to the present
case. Thus, the OSG argues that the petition should be dismissed outright for being
filed with this Court, instead of with the Court of Appeals, under a wrong mode of
appeal. On the other hand, assuming Rule 65 applies, the OSG points out that the
petition for certiorari should be filed with the Court of Appeals.

Based on Memorandum Circular No. 58, [12] the resolution of the DOJ Secretary is
appealable administratively to the Office of the President since the offenses charged
in this case are punishable by reclusion perpetua.[13] From the Office of the
President, the aggrieved party may file an appeal with the Court of Appeals
pursuant to Rule 43.[14]

Even assuming that the DOJ Secretary committed grave abuse of discretion in
rendering the assailed Resolutions amounting to lack or excess of jurisdiction,

petitioner should have filed the instant petition for certiorari with the Court of
Appeals. Hence, on the issue alone of the propriety of the remedy sought by
petitioner, this petition forcertiorari must fail. However, considering the gravity of
the offenses charged and the need to expedite the disposition of this case, the
Court will relax the rules and finally resolve this case in the interest of substantial
justice.

Whether petitioner was denied

due process during the preliminary investigation

Absence of a clarificatory hearing

The Court rejects petitioners contention that she was denied due process when the
investigating prosecutor did not conduct a clarificatory hearing. A clarificatory
hearing is not indispensable during preliminary investigation. Rather than being
mandatory, a clarificatory hearing is optional on the part of the investigating officer
as evidenced by the use of the term may in Section 3(e) of Rule 112. This provision
states:

(e)

If the investigating officer believes that there are matters

to be clarified, he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during which the parties
shall be afforded an opportunity to be present but without the right
to examine or cross-examine. xxx[15] (emphasis supplied)

The use of the word may in a statute commonly denotes that it is directory in
nature. The term may is generally permissive only and operates to confer discretion.
[16]
Under Section 3(e) of Rule 112, it is within the discretion of the investigation
officer whether to set the case for further hearings to clarify some matters.

In this case, the investigating prosecutor no longer conducted hearings after

petitioner submitted her counter-affidavit. This simply means that at that point the
investigating prosecutor believed that there were no more matters for clarification.
It is only in petitioners mind that some crucial points still exist and need
clarification. In any event, petitioner can raise these important matters during the
trial proper.

Petitioner was not deprived of due process since both parties were accorded
equal rights in arguing their case and presenting their respective evidence during
the preliminary investigation. Due process is merely an opportunity to be heard.
[17]
Petitioner cannot successfully invoke denial of due process since she was given
the opportunity of a hearing. [18] She even submitted her counter-affidavit to the
investigating prosecutor on 18 January 2000.

Preliminary investigation is merely inquisitorial. It is not a trial of the case on

the merits.[19] Its sole purpose is to determine whether a crime has been committed
and whether the respondent is probably guilty of the crime.[20] It is not the
occasion for the full and exhaustive display of the parties evidence. [21] Hence, if the
investigating prosecutor is already satisfied that he can reasonably determine the
existence of probable cause based on the parties evidence thus presented, he may
terminate the proceedings and resolve the case.

Obtaining a copy of the autopsy report

Petitioner argues that she was denied the right to examine evidence submitted by
complainants when the investigating prosecutor unilaterally obtained a copy of the
autopsy report from the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring the
investigating prosecutor to notify the parties before securing a copy of the autopsy
report. The autopsy report, which states the causes of Ronalds death, can either
absolve or condemn the petitioner. Unfortunately for petitioner, the investigating
prosecutor found that the autopsy report bolstered complainants allegations.

Moreover, there is nothing to support petitioners claim that the investigating

prosecutor was biased in favor of complainants. There are other pieces of evidence
aside from the autopsy report upon which the investigating prosecutor based her
finding of probable cause. The autopsy report is not the sole piece of evidence
against petitioner. The sworn statement of the other victim, Lorendo, and the
eyewitness account of Jennilyn Quirong, substantiate the charges against petitioner.
Petitioners failure to deny the occurrence of the head-banging incident also
strengthened complainants allegations.

Petitioner mistakenly cites Section 3(d) of Rule 112 [22] in arguing that the
investigating prosecutor should not go beyond the evidence presented by
complainants in resolving the case. This provision applies if the respondent cannot
be subpoenaed or if subpoenaed fails to submit her counter-affidavit within the
prescribed period. Such is not the case here where petitioner filed her counteraffidavit and both parties presented their respective evidence.

Whether there is probable cause

for the offenses charged against petitioner

Existence of probable cause

Petitioner challenges the finding of probable cause against her for the offenses
charged arguing that the head-banging incident was not the proximate cause of
Ronalds death. Petitioner insists that efficient intervening events caused Ronalds
death.
We do not agree. There is probable cause for the offenses charged against
petitioner. Probable cause is the existence of such facts and circumstances as would
excite the belief in a reasonable mind that a crime has been committed and the
respondent is probably guilty of the crime.[23]

In the present case, Ronald, a nine-year-old student, died five days after his
teacher, petitioner in this case, allegedly banged his head against that of his
classmate Lorendo. There is nothing in the records showing petitioners specific
denial of the occurrence of such act. Petitioner simply stated that the head-banging
incident happened but [she] did not perpetrate it. [24] In effect, petitioner admits the
occurrence of the head-banging incident but denies committing it.

The alleged intervening events before Ronald died, namely: (a) the
consultation with a quack doctor, and (b) the three-day confinement in the East
Avenue Medical Center, are not sufficient to break the relation of the felony
committed and the resulting injury. Were it not for the head-banging incident,
Ronald might not have needed medical assistance in the first place.

These circumstances which allegedly intervened causing Ronalds death are

evidentiary matters which should be threshed out during the trial. The following are
also matters better left for the trial court to appreciate: (a) the contents of the
death certificate and autopsy report, (b) the medical records of Ronalds accident in
November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie
Lugales, and (d) the alleged lack of medical assistance or medical negligence which
caused Ronalds death.

To repeat, what is determined during preliminary investigation is only

probable cause, not proof beyond reasonable doubt. [25] As implied by the words
themselves, probable cause is concerned with probability, not absolute or moral
certainty.[26]

Asserting her innocence, petitioner continues to invoke the disposition of the

inquest prosecutor finding insufficient evidence for the charges against her. As
correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the case
but merely recommended it for further investigation since it was not proper for
inquest and the evidence was then insufficient. Moreover, petitioners active
participation in the preliminary investigation without questioning the propriety of
such proceedings indicates petitioners agreement with the recommendation of the
inquest prosecutor for the further investigation of the case.

Charges of Homicide and Child Abuse

Petitioners single act of allegedly banging the heads of her students had two
distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face
prosecution for cruelty to each victim. For Ronalds death, petitioner is being
charged with homicide under Article 249 of the Revised Penal Code [27] in relation to
Section 10(a), Article VI of RA 7610 punishable by reclusion perpetua.[28] However,
this does not mean that petitioner is being charged with the distinct offenses of
homicide and child abuse for Ronalds death. On the other hand, for her cruelty to
Lorendo, petitioner is being charged with violation of Section 10(a), Article VI of RA
7610 punishable by prision mayor in its minimum period.
Contrary to petitioners contention, Section 10(a), Article VI of RA 7610 is
clear. This provision reads:

(a) Any person who shall commit any other acts of child abuse,
cruelty or exploitation or be responsible for other conditions prejudicial
to the childs development including those covered by Article 59 of
Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of prision
mayor in its minimum period.

Ambiguity is a condition of admitting two or more meanings, of being understood in

more than one way, or of referring to two or more things at the same time. A statute
is ambiguous if it is susceptible to more than one interpretation. [29] In the present
case, petitioner fails to show convincingly the ambiguity in Section 10(a), Article VI
of RA 7610.

Section 3(b), Article VI of RA 7610 defines child abuse as the maltreatment, whether
habitual or not, of the child which includes physical abuse and cruelty. Petitioners
alleged banging of the heads of Ronald and Lorendo is clearly an act of cruelty.

In a petition for certiorari like this case, the primordial issue is whether the DOJ
Secretary acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse of
discretion in finding that there is probable cause to charge petitioner of the crimes

of homicide and child abuse. The Court further rules that the investigating
prosecutor did not act with grave abuse of discretion in securing motu proprio the
autopsy report and in not calling for a clarificatory hearing. This ruling does not
diminish in any way the constitutional right of petitioner to be presumed innocent
until the contrary is proven.

WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of

the Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 996254. No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION
G.R. No. 161083
PEOPLE
OF
THE
PHILIPPINES,
represented
by
Chief
State
Prosecutor JOVENCITO ZUO, State
Prosecutor
GERONIMO
SY
and
Prosecution
Attorney
IRWIN
MARAYA,

Present:

CARPIO, J., Chairperson,

NACHURA,

Petitioners,

PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

HON. BASILIO R. GABO, in his

capacity as Presiding Judge of the
Regional Trial Court of Malolos,
Bulacan, Branch II and WILSON CUA
TING, EDWARD NGO YAO, WILLY SO
TAN and CAROL FERNAN ORTEGA,
Respondents.
Promulgated:

August 3, 2010
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before this Court is a petition for certiorari[1] under Rule 65 of the Rules of Court, seeking to set
aside the July 24, 2003 Decision[2] and October 3, 2003 Resolution[3] of the Court of Appeals (CA) in CAG.R. SP No. 71985.
The facts of the case, as culled from the petition, are as follows:

On May 14, 2001, around 12:15 a.m., a fire broke out inside the plant of Sanyoware Plastic
Products Manufacturing Corporation (Sanyoware) located at Km. 8, McArthur Highway, Lolomboy,
Bocaue, Bulacan. The Sanyoware plant had four single-storey buildings, enclosed in concrete walls with
steel tresses and galvanized iron sheet roofing.

Sanyoware 2, Warehouse 2, the building that was razed by fire, was located at the right innermost
portion of the plant facing north. Sanyoware occupied the right, western portion of the said building,
while New Unitedware Marketing Corporation (Unitedware) rented the other half, located at the left,
eastern portion. The building was divided at the center by a tall concrete firewall with a steel gate.

Investigations were conducted by the Philippine 3 rd Regional Criminal Investigation and

Detention Group (CIDG) and the Inter Agency Anti-Arson Task Force (IATF) of the Department of the
Interior and Local Government. Pursuant to the August 1, 2001 letter [4] of CIDG Regional Officer P/Supt.
Christopher A. Laxa to the Secretary of the Justice; the IATFs October 25, 2001 Indorsement; [5] and the
October 8, 2001 letter[6] of Bureau of Fire Protection (BFP) Chief Sr. Supt. Victoriano C. Remedio to the
Prosecutor of the DOJ, the following were accused of destructive arson before the Office of the Chief
State Prosecutor, namely: Samson Cua Ting, alias Ding Jian Zhi, External Vice-President; Wilson Cua

Ting, Plant Manager; Edward Ngo Yao (Yao), President of New Marketing Corporation; Willy So Tan,
alias Chen Yi Ming, Vice-President for Operations; Carol Fernan Ortega, Assistant to the External VicePresident; and John Doe and Peter Doe.

In support of the accusation, petitioner submitted the Sworn Statements of Richard Madrideo,
Jaime Kalaw, Raymund Dy, Chit Chua, Jennifer Chua Reyes, Shanda Amistad, SPO1 Valeriano Dizon
and Inspector Allan N. Barredo.

In his sworn statement,[7] Richard Madrideo, a supervisor at Sanyoware said that there were two
separate sets of fire in the Sanyoware Warehouse and that it was different from, but occurred
simultaneously, with the fire at the Unitedware Warehouse. Madrideo claimed that respondents Wilson
Ting and Yaoinstructed him that if anyone should ask about the fire, he should say that the fires did not
break out simultaneously and the cause thereof was defective wiring. In his additional sworn statement,
Madrideo claimed that, days after the fire, he was threatened by respondents and was being forced to
write a sworn statement against his will.

Jaime Kalaw, a former head of the Maintenance Department of Sanyoware, alleged in his sworn
statement[8] that the cause of the fire could not have been faulty electrical wiring, because the warehouse
was relatively new and that, on the day of the fire, the plant was not in operation so there was no heavy
load of electricity and all the circuit breakers were shut down. Kalaw noted that a week before the fire
occurred, almost 300 unserviceable molds were transferred to the burned Sanyoware warehouse. A day
before the fire, expensive finish products were loaded in delivery trucks. In addition, Kalaw alleged that
he saw respondentYao a day before the fire driving to the Unitedware warehouse. Once inside,
respondent Yao took a rectangular shaped object from his vehicle.

Raymond Dy, a warehouse supervisor at Sanyoware stated in his sworn statement [9] that a week
before the fire occurred, he observed that saleable products from the burned warehouse were transferred
to the Sanyo City Warehouse, while unusable components from the Sanyo City warehouse were
transferred to the burned warehouse. Dy alleged that the transfer of the products was upon the orders of
Charles Lee, the plant manager of Sanyoware, who allegedly told the employees to finish the transfers on
May 12, 2001.

Chit Chua, an employee at the Accounting Department of Sanyoware, claimed in her sworn
statement[10] that Sanyoware was indebted to a number of banks and corporations and that Sanyowares
outstanding obligations amounted to P95,000,000.00 to P96,000,000.00. Jennifer Chua Reyes, a secretary
at Sanyoware, alleged in her sworn statement [11] that Sanyoware has an outstanding loan
of P180,000,000.00 to various individuals.

Shanda Amistad, a former stay-in worker at Sanyoware, alleged in her affidavit [12] that, around
8:00 a.m. of May 13, 2001, she saw respondent Yaodriving a Canter truck of Unitedware loaded with
goods. Yao went to Sanyoware three times that day. Amistad found it unusual, since Yao did not normally
go to Sanyoware on Sundays and there were available drivers at that time. Around 2:00 p.m. of the same
day, respondent Wilson Ting arrived.

SPO1 Valeriano Dizon (SPO1 Dizon), a fireman assigned at the Meycauayan Fire Station,
Bulacan, stated in his sworn statement [13] that he conducted the examination of the fire that occurred on
May 14, 2001. He alleged that he took the statement of the witnesses, but Sr. Supt. Enrique Linsangan of
the BFP Regional Office, Region III, took the witnesses statements from him before he could prepare the
Final Investigation Report (FIR). Thereafter, Sr. Supt. Linsangan summoned him, Inspector Allan Barredo
and BFP C/Ins. Absalon Zipagan, Municipal Fire Marshall of Bocaue, Bulacan, and showed them the
copy of the FIR and made them sign it. Inspector Barredo, in his affidavit, [14] corroborated SPO1 Dizons
allegation as to how Sr. Supt. Lansangan summoned and ordered them to sign the FIR.

In their defense, respondents submitted a Counter-Affidavit [15] to refute the allegations made
against them, the significant portions of which read:
7. Principally on the basis of the Salaysay of Richard Madrideo
attached Annex A to the Affidavit of Carol Ortega Fernan dated
September 22, 2001, and on the basis of the Sinumpaang Salaysay
of Ricky A. Hista and of the Karagdagang Salaysay of Bobby Bacang
and on the basis of our inquiry from others, we have good reason to
believe that one claiming to be a representative of CRM Adjustment
Corporation had indeed offered money and jobs to persons to give
perjured statements to make it appear that there was arson and that
we committed it. (The Affidavit of Carol Ortega Fernan, together with
the Salaysay of Richard Madrideo as Annex A thereto, the Sinumpaang
Salaysay of Ricky A. Hista and the Karagdagang Salaysay of Bobby
Bacang were all submitted last September 22, 2001 to the Inter
Agency Anti-Arson Task Force, Office of the Secretary, Department of
the Interior and Local Government.

8. We would like to stress the fact that during the supposed

investigation of this arson case by complainant 3 rd Regional Criminal
Investigation and Detection Group, not one of us was invited by
complainant to answer the allegations of witnesses against us. As far
as we know, complainant did not even make an ocular inspection of
the place where fire occurred.

9. Although the CIDG investigators were allegedly informed by

Mrs. June Go, a clerk of Sanyoware, that nobody could assist the team
in the ocular inspection, said investigators did not proceed to conduct
an ocular inspection when they actually did not need any assistance
and when nobody was preventing them from conducting the
inspection.

10. Although Senior Police Officer Regino Raquipiso claims that

when he and SPO1 John Tabago returned to the factory, the ocular
inspection was not pushed through for alleged lack of clearance from
the company owners, there is no showing that said police officers
insisted or demanded to conduct then and there an ocular inspection.

11. Apparently, complainant solely relied on the statements of

Jaime Kalaw, Raymond Dy and Richard Madrideo in deciding to file the
case at bar against us.

12. Richard Madrideo executed a Sinumpaang Salaysay before

SPO4 Regino D. Raquipiso, Jr. last June 29, 2001 wherein he claims,
among others, that there was a simultaneous fire that occurred in two
places
in
Sanyoware
warehouse
and
in
a
place
in
Unitedware. However, said claim is a blatant lie and perjured
statement.

13. In his Salaysay (Annex A to the Affidavit of Carol Ortega

Fernan submitted last September 22, 2001 to the Inter Agency AntiArson Task Force), Richard Madrideo admitted to the fact that he
received the sum of P1,000.00 from Atty. Lugtu and that he
subsequently received another sum of P15,000.00 from Atty.
Lugtu.Richard Madrideo was also given a cellphone and was promised
a job. According to said Salaysay, Atty. Lugtu instructed Madrideo to
state, among others, in his Salaysay that Madrideo saw a simultaneous
fire that occurred in two sides of the plant of Sanyoware.

14. In the Karagdagang Salaysay of Richard Madrideo, he

repudiated his Salaysay by claiming that he was threatened and
coerced by Respondents into executing said Salaysay. Said claim is a
blatant lie. In essence, the story contained in the Karagdagang
Salaysay regarding alleged threats and coercion is nothing but a
fabricated lie for the truth of the matter being that his Salaysay was
executed by him freely and voluntarily last July 30, 2001 at the
conference room of Sanyoware. He was not threatened by anyone. He
was neither paid nor promised any consideration for executing said
Salaysay.

15. At any rate, I, Wilson Ting, and the security guards on duty
can attest to the fact that fire started at the warehouse of Unitedware
and that it did not occur simultaneously in different places.

16. In the Sworn Statement of Raymond Dy, he claims that

Richard Madrideo had told him that while the fire was on going at the
Unitedware warehouse, Madrideo saw the fire on top of the stock piles
inside the Sanyoware warehouse aside from that fire at the
Unitedware. However, Jaime Kalaw, who was allegedly informed about
the fire by Raymond Dy, did not mention in his Sworn Statement about
any simultaneous occurrence of the fire in different places. Jaime Kalaw
even further stated in his Sworn Statement that upon his inquiry from
the employees, he was allegedly told that the fire originated from
Unitedware warehouse that spread to Sanyoware warehouse.

17. The allegation of Jaime Kalaw in his Sworn Statement that all
circuit breakers were off position so that there was no flow of electric
current that may cause fire on the warehouses and the allegation of
Raymond Dy that during his roving before the fire, all the lights were
off are not true for the truth being that management had required that
some lights be put on every night in all the warehouses so that they
can be well guarded. Besides, I, Wilson Ting, and the guards on duty
can attest to the fact that there were lights in all the warehouses
during the subject incident.

18. Raymond Dy claims that the keys were usually kept by the
guard on duty, but that on this occasion, he learned from Shandra
Amistad, a stay-in helper, that the keys were then kept by Wilson
Ting. Obviously, said claim is based on hearsay and thus, should not be
given any credence and besides, I, Wilson Ting, deny said claim for the
truth of the matter being that the keys of Sanyoware are kept inside its
main office and are not kept by the guard on duty.

19. Raymond Dy also claims that the lights were 3 to 4 meters

away from the stocks, so that it could be impossible that stocks will be
caught by fire if and when the lights or electrical system leak
down. However, said claim is not true for the fact of the matter is that
in the Unitedware warehouse and in Sanyoware warehouse, there were
so much pile[s] of stocks that some pile[s] almost reached the lights.

20. There is also no truth to the allegation of Raymond Dy that a

week before the fire, saleable finished products from Sanyoware and

Unitedware
were
removed
and
transferred
to Sanyo City warehouse. There is also no truth to the allegation that
non-useable
components
were
removed
from Sanyo City and
transferred a week before the fire to the warehouses that got
burned. Likewise, there is no truth that Charles Lee gave a deadline
until Saturday (May 12) to transfer non-useable components to the
burned warehouses. Said allegations are all fabricated lies designed to
make it appear that there was arson.

21. Long before the subject incident, I, Wilson Ting, had ordered
to have the stock piles that were in between the steel gate dividing
Unitedware and Sanyoware warehouses moved, not to have a
pathway, but for the purpose of closing the said steel gate. After said
stock piles were moved, the steel gate was padlocked.

22. There was nothing extraordinary or irregular for several

delivery trucks filled with stocks to stay at the parking area for the
night and to leave very early in the morning to avoid
traffic. Considering the huge volume of deliveries being made regularly
by Sanyoware and Unitedware, delivery trucks with finished products
were often times parked in the evening and during Sundays and
holidays at the compound of Sanyoware and they usually moved out
very early in the morning from Monday to Saturday. Thus, there was
nothing extraordinary or irregular for some delivery trucks with stocks
at the parking area on the night of May 13, 2001, considering
especially that it was a Sunday.

23. Being the operations manager of Sanyoware, I have no fixed

time and schedule of work. Even on a Sunday or holiday, I, Wilson
Ting[,] sometimes visit the plant.Thus, there was nothing unusual that
I, Wilson Ting, went to Sanyoware last May 13, 2001. Due to several
incidents of thefts that took place inside the compound of Sanyoware
and because of reports that the delivery trucks at the parking lot might
contain some items that were not included in the inventory for
delivery, I, Wilson Ting, as operations manager, decided to be at
Sanyoware on that Sunday (May 13, 2001) principally to check the
goods inside the delivery trucks. With the help of security guards
Bobby Bacang and Ricky Hista, I, Wilson Ting, checked the goods in all
the delivery trucks.

24. Being the President and practically the owner of Unitedware,

a marketing area of Sanyoware and the lessee of Sanyowares
warehouse, I, (Edward Yao), visit Sanyoware and Unitedware from time
to time.

25. As my (Edward Yaos) mother-in-law asked from me (Edward

Yao) some chairs and drawers, I (Edward Yao) drove my Pajero and
went to Sanyoware. I (Edward Yao) called up Wilson Ting and informed
him that Ill be getting some chairs and drawers from Sanyoware for my
mother-in-law. From the plant of Sanyoware, I (Edward Yao) got some
chairs and drawers. When said chairs and drawers could not fit in my
(Edward Yao) [P]ajero, I (Edward Yao) left to get a van. I (Edward Yao)
came back later driving a van where the said chairs and drawers were
placed. I (Edward Yao) brought said chairs and drawers to my motherin-law who selected and got only some items and so, I (Edward Yao)
returned to Sanyoware the remaining items. Before I (Edward Yao) left
again, Wilson Ting asked me to come back for some chat and so, I
(Edward Yao) returned in my [P]ajero. However, after chatting with
Wilson Ting, I (Edward Yao) left at around 9:00 oclock in the evening of
May 13, 2001. Thus, just before the incident when the fire occurred, I
(Edward Yao) was not in the compound of Sanyoware.

26. There is no truth, however, to the claim that I (Edward Yao)

had entered the warehouse of Unitedware and that I (Edward Yao) got
a rectangular shape black object from my vehicle while inside the
warehouse for the truth of the matter being that I (Edward Yao) did not
enter said warehouse and I (Edward Yao) did not get any object from
my vehicle. I (Edward Yao) got the said chairs and drawers from the
plant of Sanyoware.

27. There is no truth that the company is suffering losses even

before the fire occurred. The loan of Sanyoware with Metrobank is fully
secured by a real estate mortgage wherein the value of the real estate,
together with the improvements thereon that was mortgaged is more
or less double the amount of the said loan and, thus, said real estate
value is more than sufficient to cover said loan of Sanyoware. On the
other hand, the loan with Equitable Bank is also fully secured by a real
estate mortgage.

28. Before the subject incident, Sanyoware was making

profits. There was no year that Sanyoware incurred losses. Its business
was going every year. Prior to the subject incident, the record of
Sanyoware with the banks was quite good.

29. Likewise, prior to the fire, Unitedware was steadily

growing. Every year, its profit continued to go up. Last year,
Unitedware made a huge profit from its operation and it is expected
that, despite the fire that burned the warehouses, Unitedware will still
make a good profit this year.

30. Complainant did not conduct any investigation, except to get

the statements of its witnesses: Madrideo, Kalaw and Dy. Likewise, the
Inter Agency Anti-Arson Task Force did not also conduct any
investigation, except in essence to ask the witnesses of complainant to
identify under oath their sworn statements executed before the
complainant and to ask respondents to submit their sworn statements
and later to identify the same under oath.

31. On the other hand, the elements of Bocaue Fire Station and
OPFM Bulacan BFP Region 3 Intel and Inves Section conducted a
thorough investigation of the origin of the fire. Statements of security
guards Bobby A. Bacang and Mark Anthony Gabay were
taken. Statement of the operations manager Wilson Ting was also
taken. The
subject
place
was
inspected. Pictures
were
taken. Specimens were obtained from the place where fire occurred
and submitted to the laboratory for examination. Said elements
undertook other activities in line with proper investigation. [16]

After preliminary investigation, then State Prosecutor Carlos C. Pormento issued a Resolution,
[17]

the dispositive portion of which reads:

WHEREFORE, premises considered, it is respectfully recommended that an

information for Destructive Arson be filed against Wilson Ting, Edward Yao, Willy So
Tan and Carol Ortega. That the case against Samson Ting be dismissed for lack of
sufficient evidence to indict him under the charge.

As to the charge of Accessories against herein three (3) Fire Officers, let that case
be remanded to TF-IATF for further investigation.[18]

Pursuant to the foregoing Resolution, an Information [19] for Arson was filed against Wilson Cua
Ting, Edward Ngo Yao, Willy So Tan, Carol F. Ortega, John Doe and Peter Doe, of the crime of arson, to
wit:

That on or about May 14, 2001, in the Municipality of Bocaue, Province of

Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating and mutually helping one another, acting in common
accord, did then and there, willfully, unlawfully, and feloniously, destroy the warehouses
known as Sanyoware Plastic Products Manufacturing Plant and New Unitedware
Marketing Corporation, including the stocks of raw materials and finish products,
machineries and various equipments by maliciously burning the same for the purpose of
concealing or destroying evidence of another violation of law, and to conceal bankruptcy
to defraud creditors and to collect from insurance.

CONTRARY TO LAW.[20]
The Information was raffled to Branch XI, Regional Trial Court (RTC) of Malolos Bulacan,
3rd Judicial Region. The case was docketed as Criminal Case No. 300-47M 2002.

Prior to the arraignment of respondents and before warrants of arrest could be issued, respondents
filed a Motion to Conduct Hearing to Determine Probable Cause and to Hold in Abeyance the Issuance of
Warrant of Arrest Pending Determination of Probable Cause. [21]

On February 27, 2002, the RTC issued an Order [22] dismissing the case, the dispositive portion of
which reads:

Accordingly, for lack of probable cause, the instant case is DISMISSED as

ordained under Sec. 6, Rule 112 of the Revised Rules of Criminal Procedure.

SO ORDERED.[23]

The RTC applied the equipoise rule in dismissing the case, because of its observation that the
sworn statements submitted by petitioner and respondents contained contradictory positions.

Aggrieved, petitioner filed a Motion for Reconsideration, [24] which was, however, denied by the
RTC in an Order[25] dated March 25, 2002.

On August 8, 2002, petitioner filed a petition for certiorari before the CA docketed as CA-G.R. SP
No. 71985. On July 24, 2003, the CA issued a Decision denying the petition, the dispositive portion of
which reads:

WHEREFORE, premises considered, there being no grave abuse of discretion

committed by the public respondent, the assailed Orders dated February 27, 2002 and
March 25, 2002 are hereby AFFIRMED in toto and the present petition is hereby
DENIED DUE COURSE and is, accordingly, DISMISSED for lack of merit.

SO ORDERED.[26]

Petitioner then filed a Motion for Reconsideration, which was, however, denied by the CA in a
Resolution[27] dated October 3, 2003.

Hence, this instant petition, with petitioner raising the following ground for this Courts
consideration, to wit:

THE COURT OF APPEALS PATENTLY AND GROSSLY ABUSED ITS DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADOPTING THE
EQUIPOISE RULE IN THE CASE AT BAR.[28]

Before anything else, this Court shall address a procedural issue raised by respondents that certiorari does
not lie considering that such special civil action is not and cannot be a substitute for an appeal, or more
importantly, a lapsed appeal.[29]

Respondents position is well taken.

It is well settled that a special civil action for certiorari under Rule 65 of the Rules of Court lies only
when, there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law,
and certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability
of that remedy,certiorari not being a substitute for a lost appeal.[30]

A perusal of the records will show that petitioner received the assailed CA Resolution on October 10,
2003. From that time on, petitioner had 15 days, or until October 25, 2003, to file an appeal by way of a
petition for review under Rule 45 of the Rules of Court. However, instead of filing the appeal on the last
day of reglementary period, petitioner simply allowed it to lapse. Clearly, petitioner had an appeal, which
under the circumstances was the adequate remedy in the ordinary course of law. On this point alone,
petitioners petition must be dismissed, as herein petition is without a doubt a substitute for a lost appeal.
In any case, even if this Court were to set aside the procedural infirmity of the petition, the same still fails
on the merits.

In a petition for certiorari, the court must confine itself to the issue of whether or not respondent court
lacked or exceeded its jurisdiction or committed grave abuse of discretion. [31]

It is well to remember that there is a distinction between the preliminary inquiry, which determines
probable cause for the issuance of a warrant of arrest, and the preliminary investigation proper, which
ascertains whether the offender should be held for trial or be released. The determination of probable
cause for purposes of issuing a 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 is the function of the investigating prosecutor.[32]

Section 6, Rule 112 of the Revised Rules of Court provides:

SEC 6. When warrant of arrest may issue.

xxxx

(a) By the Regional Trial Court. Within (10) days from the filing of the complaint
or information, the judge shall personally evaluate the resolution of the prosecutor
and its supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause, he shall
issue a warrant of arrest, or a commitment order of the accused had already been arrested,
pursuant to a warrant issued by the judge who conducted preliminary investigation or
when the complaint or information was filed pursuant to Section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved by the
court within thirty (30) days from the filing of the complaint or information. [33]

As enunciated in Baltazar v. People,[34] the task of the presiding judge when the Information is
filed with the court is first and foremost to determine the existence or non-existence of probable cause for
the arrest of the accused. Probable cause is such set of facts and circumstances as would lead a reasonably
discreet and prudent man to believe that the offense charged in the Information, or any offense included
therein, has been committed by the person sought to be arrested. In determining probable cause, the
average man weighs the facts and circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on common sense. A finding of probable
cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and
that it was committed by the accused. Probable cause demands more than suspicion; it requires less than
evidence that would justify conviction.[35] The purpose of the mandate of the judge to first determine
probable cause for the arrest of the accused is to insulate from the very start those falsely charged with
crimes from the tribulations, expenses and anxiety of a public trial. [36]

Based on the foregoing, the RTC acted within its jurisdiction when it dismissed the case on lack
of probable cause as the same is sanctioned under Section 6, Rule 112 of the Rules of Court. The

penultimate question to be resolved then is was such exercise of jurisdiction attended by grave abuse of
discretion?

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or in other words where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it 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 or to act at all in
contemplation of law.[37]

Petitioners main argument hinges on the propriety of the RTCs use of the equipoise rule in
dismissing the case which was affirmed by the CA. Specifically, petitioner contends that the equipoise
rule cannot be used by the RTC merely after the filing of the information, thus:

Since there must be a proper determination of the presence or absence of

evidence sufficient to support a conviction, i.e., proof beyond reasonable doubt, the
equipoise rule shall properly come into play when the parties have already concluded the
presentation of their respective evidence. It is only at this stage, not at any prior time and
certainly not merely after the filing of the information, can the trial court assess and
weigh the evidence of the parties and thereafter determine which party has the
preponderance of evidence. If both parties fail to adduce evidence in support of their
respective cases, an adverse decision would be rendered against the party which has the
burden of proof.[38]

Under the equipoise rule, where the evidence on an issue of fact is in equipoise, or there is doubt on
which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule
finds application if the inculpatory facts and circumstances are capable of two or more explanations, one
of which is consistent with the innocence of the accused and the other consistent with his guilt, for then
the evidence does not suffice to produce a conviction. [39]

To this Courts mind, the reliance of the RTC in the equipoise rule is misplaced as a review of previous
Court decisions would show that the position of petitioner is in fact correct. The equipoise rule has been
generally applied when the parties have already concluded the presentation of their respective evidence as
shown in a plethora of cases such as Abarquez v. People,[40] Tin v. People[41] and People v. Leano.[42]

While the use of the equipoise rule was not proper under the circumstances of the case at bar, the
same, however, does not equate to an abuse of discretion on the part of the RTC, but at most, merely an
error of judgment. More importantly, this Court finds that the RTC had in fact complied with the
requirement under the rules of personally evaluating the resolution of the prosecutor and its supporting
evidence and that the assailed Order was arrived at after due consideration of the merits thereto, thus:

By this statement of Madrideo, it would appear fire broke out in two (2) places,
which, presupposes or implies that some sort of incendiary or flammable substances were
ignited to start the fire. The investigation conducted by the Bocaue Fire Station, however,
appears to have ruled out the use of incendiary or inflammable substances. Annex E of
the Complaint, Chemistry Report No. C-054-2001 of the Bulacan Provincial Crime
Laboratory Office indicated that the specimen submitted by the Bocaue Fire Station in
connection with the fire in question was found negative of any flammable substance. This
finding was never debunked or repudiated, which makes the misgivings of the police
investigators about its veracity unfounded. Thus, pitted against the allegation of
Madrideo, this physical evidence puts the truth of the latter in grave doubt. Physical
evidence is evidence of the highest order. It speaks more eloquently than a hundred
witnesses (People vs. Sacabin, 57 SCRA 707). Physical evidence are mute but eloquent
manifestations of truth and they rate high in our hierarchy of trustworthy evidence
(People vs. Uycoque, 124 SCRA 769).

At this stage, it must be stressed that the Fire Investigation Report prepared by
the Bocaue Fire Station (Annex D) and the Certification made by the Provincial Fire
Marshall, Absalon Zipagan, point to the faulty wiring as the cause or origin (sic) of the
conflagration at bar. The Office the Regional Fire Marshall also came out with the same
findings. (Annexes B and C) All the above reports and investigation stand as the official
report of the fire in question. Contrary to the Resolution, we find nothing in the
respective sworn statements of Supt. Absalon Zipagan, Sr. Supt. Enrique Linsangan and
Insp. Allan Barredo that deviated much less repudiated the aforesaid reports and findings.

Far from impugning their own investigation, the three (3) fire officials simply narrated
the steps that were taken at the provincial and regional levels in the investigation of the
Sanyo fire. Needless to state, the investigation reports and findings carry the presumption
that official duty has been regularly performed. A mere affidavit cannot overcome this
presumption. (Transport Corporation vs. CA, 241 SCRA 77) Government officials are
presumed to perform their functions with regularity and strong evidence is necessary to
rebut this presumption. (Tata vs. Garcia, Jr., 243 SCRA 235)

The significance of the above reports and findings cannot be overlooked. Note
that F/CINSP. Absalon Zipagan, F/Insp. Allan Barredo and SPO1 Valeriano Dizon, Jr.
were included as accessories in the complaint by the DILG, Inter Agency Anti-Arson
Task Force but the State Prosecutor did not rule on their liability, which thus enhances all
the more the probative value of the said reports and findings.

This Court, likewise, noted that although the Inter Agency Anti Arson Task Force
was quick to rule out faulty electrical wiring, it did note arrive at a definite theory how
the fire started, leaving everything hanging in mid-air.

This Court is also hard put to make out a case from the actuations of some of the
accused before, during and after the fire. For one, the presence of Wilson Ting and
Edward Yao in the Sanyo premises before the fire is not criminal per se. Both apparently
have their own explanations, and following the equipoise rule as elucidated above, no
adverse implications can be inferred therefrom. So are with the alleged utterances made
by the accused during and after the fire, having been said in the midst of tenseful
happening these can be attributed to their desperation over the loss of some of their
properties. And, consistent with the equipoise rule, if ever said statements were uttered at
all, they cannot serve as evidence against the accused for the offense charged. [43]

The conclusions of the RTC which led to the dismissal of the information against respondents
cannot, in any sense, be characterized as outrageously wrong or manifestly mistaken, or whimsically or
capriciously arrived at. The worst that may perhaps be said of it is that it is fairly debatable, and may even
be possibly erroneous. But they cannot be declared to have been made with grave abuse of discretion. [44]

Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the filing of an
Information, has the following options: (1) dismiss the case if the evidence on record clearly failed to
establish probable cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of
doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five
days from notice, the issue to be resolved by the court within thirty days from the filing of the
information.[45]
The judge is required to personally evaluate the resolution of the prosecutor
and its supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. [46] To this Courts mind, the RTC
had complied with its duty of personally evaluating the supporting evidence of the
prosecution before arriving at its decision of dismissing the case against
respondents.

While petitioner mainly argues against the use of the equipoise rule, it cannot escape this Courts
attention that ultimately petitioner is asking this Court to resolve the propriety of the dismissal of the case
by the RTC, on the basis of the Information and the attached documents it had filed. This Court however,
will defer to the findings of fact of the RTC, which are accorded great weight and respect, more so
because the same were affirmed by the CA. In addition, it bears to stress that the instant case is a petition
for certiorari where questions of fact are not entertained. [47]

The sole office of writ of certiorari is the correction of errors of jurisdiction, including the
commission of grave abuse of discretion amounting to lack of jurisdiction and does not include correction
of public respondents evaluation of the evidence and factual findings based thereon. [48] An error of
judgment that the court may commit in the exercise of its jurisdiction is not correctible through the
original special civil action of certiorari.[49]

In any case, the dismissal of herein petition does not preclude petitioner from availing of any
other action it deems appropriate under the premises. Double jeopardy cannot be invoked where the
accused has not been arraigned and it was upon his express motion that the case was dismissed.
[50]

Moreover, while the absence of probable cause for the issuance of a warrant of arrest is a ground for

the dismissal of the case, the same does not result in the acquittal of the said accused. [51]

WHEREFORE, premises considered, the petition is DISMISSED. The July 24, 2003 Decision
and October 3, 2003 Resolution of the Court of Appeals, in CA-G.R. SP No. 71985, are AFFIRMED.

SO ORDERED.

THIRD DIVISION
JOSE ANTONIO C. LEVISTE,
Petitioner,

G.R. No. 182677

Present:

- versus HON. ELMO M. ALAMEDA, HON. RAUL

M. GONZALEZ, HON. EMMANUEL Y.
VELASCO, HEIRS OF THE LATE RAFAEL
DE LAS ALAS,
Respondents.

CARPIO MORALES, Chairperson,

NACHURA,*
BERSAMIN,
ABAD,** and
VILLARAMA, JR., JJ.
Promulgated:
August 3, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the
August 30, 2007 Decision[1] and the April 18, 2008 Resolution[2] of the Court of Appeals in CA-G.R. SP
No. 97761 that affirmed the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied
the motion for reconsideration, respectively.
Petitioner was, by Information[3] of January 16, 2007, charged with homicide for the death of Rafael de las
Alas on January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the
case was raffled, presided by Judge Elmo Alameda, forthwith issued a commitment order[4] against
petitioner who was placed under police custody while confined at the Makati Medical Center.[5]
After petitioner posted a P40,000 cash bond which the trial court approved,[6] he was released from
detention, and his arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an
Urgent Omnibus Motion[7] praying, inter alia, for the deferment of the proceedings to allow the public
prosecutor to re-examine the evidence on record or to conduct a reinvestigation to determine the proper
offense.
The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring petitioners arraignment
and allowing the prosecution to conduct a reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order of January 31,
2007[9] denying reconsideration of the first order. Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to
defer acting on the public prosecutors recommendation on the proper offense until after the appellate
court resolves his application for injunctive reliefs, or alternatively, to grant him time to comment on the
prosecutors recommendation and thereafter set a hearing for the judicial determination of probable cause.
[10]
Petitioner also separately moved for the inhibition of Judge Alameda with prayer to defer action on the
admission of the Amended Information.[11]
The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7,
2007 that admitted the Amended Information [13] for murderand directed the issuance of a warrant of
arrest; and (2) Order of February 8, 2007[14] which set the arraignment on February 13,
2007. Petitioner questioned these two orders via supplemental petition before the appellate court.
[12]

The appellate court dismissed petitioners petition, hence, his present petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE

REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL
INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER
COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN
FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO
BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN
ADMITTING STATE PROSECUTOR VELASCOS AMENDED INFORMATION,
ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE
REINVESTIGATION
AND
ILLEGAL
AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE COURT
(sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION
DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS
AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW
EVIDENCE BEING ADDUCED DURING THE REINVESTIGATION, RESPONDENT
JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONERS MOTION FOR A
HEARING FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE.[15] (emphasis
in the original omitted)
Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner
refused to plead, drawing the trial court to enter a plea of not guilty for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex
Abundanti Cautela[16] which the trial court, after hearings thereon, granted by Order of May 21, 2007,[17] it
finding that the evidence of guilt for the crime of murder is not strong. It accordingly allowed petitioner to
post bail in the amount of P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner
under the Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of
homicide, sentencing him to suffer an indeterminate penalty of six years and one day of prision mayoras
minimum to 12 years and one day of reclusion temporal as maximum. From the Decision, petitioner filed
an appeal to the appellate court, docketed as CA-G.R. CR No. 32159, during the pendency of which he
filed an urgent application for admission to bail pending appeal. The appellate court denied petitioners
application which this Court, in G.R. No. 189122, affirmed by Decision of March 17, 2010.

The Office of the Solicitor General (OSG) later argued that the present petition had been rendered
moot since the presentation of evidence, wherein petitioner actively participated, had been concluded. [18]
Waiver on the part of the accused must be distinguished from mootness of the petition, for in
the present case, petitioner did not, by his active participation in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the regularity of the
reinvestigation of the charge against him, the validity of the admission of the Amended Information, and
the legality of his arrest under the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner refused to enter his plea since the
issues he raised were still pending resolution by the appellate court, thus prompting the trial court to enter
a plea of not guilty for him.
The principle that the accused is precluded after arraignment from questioning the illegal arrest or
the lack of or irregular preliminary investigation appliesonly if he voluntarily enters his plea and
participates during trial, without previously invoking his objections thereto.[19] There must be clear and
convincing proof that petitioner had an actual intention to relinquish his right to question the existence of
probable cause. When the only proof of intention rests on what a party does, his act should be so
manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the
particular right that no other explanation of his conduct is possible. [20]
From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of
petitioner to preclude him from obtaining a definite resolution of the objections he so timely
invoked. Other than its allegation of active participation, the OSG offered no clear and convincing proof
that petitioners participation in the trial was unconditional with the intent to voluntarily and unequivocally
abandon his petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of the
present petition.[21]
Whatever delay arising from petitioners availment of remedies against the trial courts Orders
cannot be imputed to petitioner to operate as a valid waiver on his part. Neither can the non-issuance of a
writ of preliminary injunction be deemed as a voluntary relinquishment of petitioners principal

prayer. The non-issuance of such injunctive relief only means that the appellate court did not
preliminarily find any exception [22] to the long-standing doctrine that injunction will not lie to enjoin a
criminal prosecution.[23] Consequently, the trial of the case took its course.
The petition is now moot, however, in view of the trial courts rendition of judgment.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. [24]
The judgment convicting petitioner of homicide under the Amended Information for murder
operates as a supervening event that mooted the present petition. Assuming that there is ground[25] to
annul the finding of probable cause for murder, there is no practical use or value in abrogating the
concluded proceedings and retrying the case under the original Information for homicide just to arrive,
more likely or even definitely, at the same conviction of homicide.Mootness would have also set in had
petitioner been convicted of murder, for proof beyond reasonable doubt, which is much higher than
probable cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds
to resolve the legal issues in order to formulate controlling principles to guide the bench, bar and public.
[26]
In the present case, there is compelling reason to clarify the remedies available before and after the
filing of an information in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances, the Court finds no
reversible error on the part of the appellate court in finding no grave abuse of discretion in the issuance of
the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has no right under the Rules
to seek from the trial court an investigation or reevaluation of the case except through a petition for
review before the Department of Justice (DOJ). In cases when an accused is arrested without a warrant,
petitioner contends that the remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.
Section 6,[27] Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense which requires
a preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a peace officer directly with the

proper court on the basis of the affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence in his
defense as provided in this Rule. (underscoring supplied)

A preliminary investigation is required before the filing of a complaint or information for an

offense where the penalty prescribed by law is at least four years, two months and one day without regard
to fine.[28] As an exception, the rules provide that there is no need for a preliminary investigation in cases
of a lawful arrest without a warrant [29] involving such type of offense, so long as an inquest, where
available, has been conducted.[30]
Inquest is defined as an informal and summary investigation conducted by a public prosecutor in
criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by
the court for the purpose of determining whether said persons should remain under custody and
correspondingly be charged in court.[31]
It is imperative to first take a closer look at the predicament of both the arrested person and the
private complainant during the brief period of inquest, to grasp the respective remedies available to them
before and after the filing of a complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private
complainant may proceed in coordinating with the arresting officer and the inquest officer during the
latters conduct of inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary
investigation, provided he duly signs a waiver of any objection against delay in his delivery to the proper
judicial authorities under Article 125 of the Revised Penal Code. For obvious reasons, this remedy is not
available to the private complainant since he cannot waive what he does not have . The benefit of the
provisions of Article 125, which requires the filing of a complaint or information with the proper judicial
authorities within the applicable period, [32] belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the attendant risk of running
against Article 125, ends with either the prompt filing of an information in court or the immediate release
of the arrested person.[33] Notably, the rules on inquest do not provide for a motion for reconsideration. [34]

Contrary to petitioners position that private complainant should have appealed to the DOJ
Secretary, such remedy is not immediately available in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition by a proper party
under such rules as the Department of Justice may prescribe. [35] The rule referred to is the 2000 National
Prosecution Service Rule on Appeal,[36] Section 1 of which provides that the Rule shall apply to appeals
from resolutions x x x in cases subject of preliminary investigation/ reinvestigation. In cases subject of
inquest, therefore, the private party should first avail of a preliminary investigation or reinvestigation, if
any, before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private complainant may pursue the
case through the regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the
accused with another opportunity to ask for a preliminary investigation within five days from the time he
learns of its filing. The Rules of Court and the New Rules on Inquest are silent, however, on whether the
private complainant could invoke, as respondent heirs of the victim did in the present case, a similar right
to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation, subject to and in light
of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the public prosecutor.[37] The private complainant in a criminal case is merely a
witness and not a party to the case and cannot, by himself, ask for the reinvestigation of the case after the
information had been filed in court, the proper party for that being the public prosecutor who has the
control of the prosecution of the case. [38] Thus, in cases where the private complainant is allowed to
intervene by counsel in the criminal action, [39] and is granted the authority to prosecute, [40] the private
complainant, by counsel and with the conformity of the public prosecutor, can file a motion for
reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must
examine the Information vis--vis the resolution of the investigating prosecutor in order to make the
necessary corrections or revisions and to ensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary investigation. Of course, that
fact may be perceived by the trial judge himself but, again, realistically it will be the

prosecutor who can initially determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses includible in the
offense charged be taken into account. It necessarily follows, therefore, that the
prosecutor can and should institute remedial measures[.][42] (emphasis and
underscoring supplied)
The prosecution of crimes appertains to the executive department of the government whose
principal power and responsibility is to see that our laws are faithfully executed. A necessary component
of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion the discretion of what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are best appreciated by prosecutors. [43]
The prosecutions discretion is not boundless or infinite, however.[44] The standing principle is that
once an information is filed in court, any remedial measure such as a reinvestigation must be addressed to
the sound discretion of the court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in
one case that:
The rule is now well settled that once a complaint or information is filed in court,
any disposition of the case, whether as to its dismissal or the conviction or the acquittal of
the accused, rests in the sound discretion of the court. Although the prosecutor retains the
direction and control of the prosecution of criminal cases even when the case is already in
court, he cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not a criminal case
should be filed in court, once the case had already been brought therein any disposition
the prosecutor may deem proper thereafter
should be addressed to the court for its consideration and approval. The only qualification
is that the action of the court must not impair the substantial rights of the accused or the
right of the People to due process of law.
xxxx
In such an instance, before a re-investigation of the case may be conducted by the
public prosecutor, the permission or consent of the court must be secured. If after such reinvestigation the prosecution finds a cogent basis to withdraw the information or
otherwise cause the dismissal of the case, such proposed course of action may be taken
but shall likewise be addressed to the sound discretion of the court. [46] (underscoring
supplied)
While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to be preferred to a
reinvestigation, the Court therein recognized that a trial court may, where the interest of justice so
requires, grant a motion for reinvestigation of a criminal case pending before it.

Once the trial court grants the prosecutions motion for reinvestigation, the former is deemed to
have deferred to the authority of the prosecutorial arm of the Government. Having brought the case back
to the drawing board, the prosecution is thus equipped with discretion wide and far reaching regarding the
disposition thereof,[48] subject to the trial courts approval of the resulting proposed course of action.
Since a reinvestigation may entail a modification of the criminal information as what happened in
the present case, the Courts holding is bolstered by the rule on amendment of an information under
Section 14, Rule 110 of the Rules of Court:
A complaint or information may be amended, in form or in substance, without leave
of court, at any time before the accused enters his plea. After the plea and during the
trial, a formal amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information, can be
made only upon motion by the prosecutor, with notice to the offended party and with
leave of court. The court shall state its reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense in accordance with section 11, Rule 119,
provided the accused would not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or
information may be made without leave of court. [49] After the entry of a plea, only a formal amendment
may be made but with leave of court and only if it does not prejudice the rights of the accused. After
arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused. [50]
It must be clarified though that not all defects in an information are curable by amendment prior to entry
of plea. An information which is void ab initio cannot be amended to obviate a ground for quashal.[51] An
amendment which operates to vest jurisdiction upon the trial court is likewise impermissible. [52]

Considering the general rule that an information may be amended even in substance and even
without leave of court at any time before entry of plea, does it mean that the conduct of a reinvestigation
at that stage is a mere superfluity?
It is not.

Any remedial measure springing from the reinvestigation be it a complete disposition or an intermediate
modification[53] of the charge is eventually addressed to the sound discretion of the trial court, which must
make an independent evaluation or assessment of the merits of the case. Since the trial court would
ultimately make the determination on the proposed course of action, it is for the prosecution to consider
whether a reinvestigation is necessary to adduce and review the evidence for purposes of buttressing the
appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases involving a substantial amendment of the
information. Due process of law demands that no substantial amendment of an information may be
admitted without conducting another or a new preliminary investigation. In Matalam v. The 2nd Division
of the Sandiganbayan,[54] the Court ruled that a substantial amendment in an information entitles an
accused to another preliminary investigation, unless the amended information contains a charge related to
or is included in the original Information.
The question to be resolved is whether the amendment of the Information from homicide to murder is
considered a substantial amendment, which would make it not just a right but a duty of the prosecution to
ask for a preliminary investigation.
The Court answers in the affirmative.
A substantial amendment consists of the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other matters are
merely of form. The following have been held to be mere formal amendments: (1) new
allegations which relate only to the range of the penalty that the court might impose in the
event of conviction; (2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations whichdo not alter
the prosecutions theory of the case so as to cause surprise to the accused and affect the
form of defense he has or will assume; (4) an amendment which does not adversely affect
any substantial right of the accused; and (5) an amendment that merely adds specifications
to eliminate vagueness in the information and not to introduce new and material facts, and
merely states with additional precision something which is already contained in the
original information and which adds nothing essential for conviction for the crime
charged.
The test as to whether a defendant is prejudiced by the amendment is whether a defense
under the information as it originally stood would be available after the amendment is
made, and whether any evidence defendant might have would be equally applicable to the
information in the one form as in the other. An amendment to an information which does
not change the nature of the crime alleged therein does not affect the essence of the
offense or cause surprise or deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of substance. [55] (emphasis and
underscoring supplied)

Matalam adds that the mere fact that the two charges are related does not necessarily or
automatically deprive the accused of his right to another preliminary investigation. Notatu dignum is the
fact that both the original Information and the amended Information in Matalam were similarly charging
the accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
In one case,[56] it was squarely held that the amendment of the Information from homicide to
murder is one of substance with very serious consequences. [57] The amendment involved in the present
case consists of additional averments of the circumstances of treachery, evident premeditation, and
cruelty, which qualify the offense charged from homicide to murder. It being a new and material element
of the offense, petitioner should be given the chance to adduce evidence on the matter. Not being merely
clarificatory, the amendment essentially varies the prosecutions original theory of the case and certainly
affects not just the form but the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v. Cajigal,[59] wherein the
amendment of the caption of the Information from homicide to murder was not considered substantial
because there was no real change in the recital of facts constituting the offense charged as alleged in the
body of the Information, as the allegations of qualifying circumstances were already clearly embedded in
the original Information. Buhat pointed out that the original Information for homicide already alleged the
use of superior strength, while Pacoy states that the averments in the amended Information for murder are
exactly the same as those already alleged in the original Information for homicide. None of these peculiar
circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the fact that what was conducted
in the present case was a reinvestigation does not invalidate the substantial amendment of the
Information. There is no substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the same objective of determining
whether there exists sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held for trial. [60] What is essential is that
petitioner was placed on guard to defend himself from the charge of murder [61] after the claimed
circumstances were made known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present countervailing evidence on the
proposed amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings
and declined to actively participate, even with extreme caution, in the reinvestigation. Mercado v. Court
of Appeals states that the rules do not even require, as a condition sine qua non to the validity of a
preliminary investigation, the presence of the respondent as long as efforts to reach him were made and an
opportunity to controvert the complainants evidence was accorded him. [62]

In his second assignment of error, petitioner basically assails the hurried issuance of the last two
assailed RTC Orders despite the pendency before the appellate court of the petition for certiorari
challenging the first two trial court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the course of the principal case
unless a temporary retraining order or a writ of preliminary injunction has been issued. [63] The appellate
court,
by
Resolution
[64]
of February 15, 2007, denied petitioners application for a temporary restraining order and writ of
preliminary injunction. Supplementary efforts to seek injunctive reliefs proved futile. [65] The appellate
court thus did not err in finding no grave abuse of discretion on the part of the trial court when it
proceeded with the case and eventually arraigned the accused on March 21, 2007, there being no
injunction order from the appellate court. Moreover, petitioner opted to forego appealing to the DOJ
Secretary, a post-inquest remedy that was available after the reinvestigation and which could have
suspended the arraignment.[66]
Regarding petitioners protestations of haste, suffice to state that the pace in resolving incidents of
the case is not per se an indication of bias. In Santos-Concio v. Department of Justice,[67] the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be
instantly attributed to an injudicious performance of functions. For ones prompt dispatch
may be anothers undue haste. The orderly administration of justice remains as the
paramount and constant consideration, with particular regard of the circumstances peculiar
to each case.
The presumption of regularity includes the public officers official actuations in all phases
of work. Consistent with such presumption, it was incumbent upon petitioners to present
contradictory evidence other than a mere tallying of days or numerical calculation. This,
petitioners failed to discharge. The swift completion of the Investigating Panels initial task
cannot be relegated as shoddy or shady without discounting the presumably regular
performance of not just one but five state prosecutors. [68]

There is no ground for petitioners protestations against the DOJ Secretarys sudden designation of Senior
State Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case [69] and
the latters conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation. [70] There is a hierarchy of officials in the prosecutory arm of
the executive branch headed by the Secretary of Justice [71] who is vested with the prerogative to appoint a
special prosecutor or designate an acting prosecutor to handle a particular case, which broad power of
control has been recognized by jurisprudence.[72]

As for the trial courts ignoring the DOJ Secretarys uncontested statements to the media which
aired his opinion that if the assailant merely intended to maim and not to kill the victim, one bullet would
have sufficed the DOJ Secretary reportedly uttered that the filing of the case of homicide
against ano against Leviste lintek naman eh I told you to watch over that case there should be a report
about the ballistics, about the paraffin, etc., then thats not a complete investigation, thats why you should
use that as a ground no abuse of discretion, much less a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a determination to file the Information even in
the absence of probable cause.[73] On the contrary, the remarks merely underscored the importance of
securing basic investigative reports to support a finding of probable cause. The original Resolution even
recognized that probable cause for the crime of murder cannot be determined based on the evidence
obtained [u]nless and until a more thorough investigation is conducted and eyewitness/es [is/]are
presented in evidence[.][74]
The trial court concluded that the wound sustained by the victim at the back of his head, the absence of
paraffin test and ballistic examination, and the handling of physical evidence, [75] as rationalized by the
prosecution in its motion, are sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not
affect the prior determination of probable cause because, as the appellate court correctly stated, the
standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than
the standard of judicial probable cause which is sufficient to initiate a criminal case. [76]
In his third assignment of error, petitioner faults the trial court for not conducting, at the very
least, a hearing for judicial determination of probable cause, considering the lack of substantial or
material new evidence adduced during the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the crime as defined by law and
thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine
whether or not a criminal case must be filed in court. Whether that function has been correctly discharged
by the public prosecutor, i.e., whether he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. [77]

The judicial determination of probable cause is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the
evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.
[78]
Paragraph (a), Section 5,[79] Rule 112 of the Rules of Court outlines the procedure to be followed by the
RTC.
To move the court to conduct a judicial determination of probable cause is a mere superfluity, for
with or without such motion, the judge is duty-bound to personally evaluate the resolution of the public
prosecutor and the supporting evidence. In fact, the task of the presiding judge when the Information is
filed with the court is first and foremost to determine the existence or non-existence of probable cause for
the arrest of the accused.[80]
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. But the judge is not
required to personally examine the complainant and his witnesses. Following
established doctrine and procedure, he shall (1) personally evaluate the report and the
supporting documents submitted by the prosecutor regarding the existence of probable
cause, and on the basis thereof, he may already make a personal determination of the
existence of probable cause; and (2) if he is not satisfied that probable cause exists,
he may disregard the prosecutors report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.[81] (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause for the issuance of a
warrant of arrest of the accused before any warrant may be issued. [82] Petitioner thus cannot, as a matter of
right, insist on a hearing for judicial determination of probable cause. Certainly, petitioner cannot
determine beforehand how cursory or exhaustive the [judge's] examination of the records should be [since
t]he extent of the judges examination depends on the exercise of his sound discretion as the circumstances
of the case require.[83] In one case, the Court emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as
such, the judge must determine the presence or absence of probable cause within such
periods. The Sandiganbayans determination of probable cause is made ex parte and
is summary in nature, not adversarial. The Judge should not be stymied and distracted
from his determination of probable cause by needless motions for determination of
probable cause filed by the accused.[84] (emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist
that would qualify the crime from homicide to murder.

The allegation of lack of substantial or material new evidence deserves no credence, because new
pieces of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no
new matter or evidence was presented during the reinvestigation of the case. It should

be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the
case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already submitted. [85]
Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be
subject of, a petition for review on certiorari since this Court is not a trier of facts. The Court cannot thus
review the evidence adduced by the parties on the issue of the absence or presence of probable cause, as
there exists no exceptional circumstances to warrant a factual review.[86]
In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction
of the court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will
and resolve questions and issues beyond its competence, such as an error of judgment. [87] The courts duty
in the pertinent case is confined to determining whether the executive and judicial determination of
probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. Although
it is possible that error may be committed in the discharge of lawful functions, this does not render the act
amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of
grave abuse of discretion amounting to excess of jurisdiction. [88]

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.

TABUJARA V PEOPLE
This petition assails the 24 February 2004 Decision of the Court of Appeals in CA-G.R. SP No. 63280
denying petitioners petition for review and directing the Municipal Trial Court of Meycauayan, Bulacan, Branch 11,
to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution
denying the motion for reconsideration.

The antecedent facts are as follows:

On 17 September 1999, respondent Daisy Dadivas-Afable simultaneously filed two criminal complaints
against petitioners for Grave Coercion and Trespass to Dwelling.The complaints read, thus:

Art. 286 (Grave Coercion)

That on the 14th day of September 1999 at around 6:00 oclock in the morning more or
less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without authority of law,
by conspiring, confederating and mutually helping to (sic) one another, did then and there
willfully, unlawfully and feloniously forced to go with them one DAISY DADIVAS-AFABLE and
against the latters will.

Art. 280, par. 2 (Trespass to Dwelling)

That on the 14th day of September 1999 at around 6:00 oclock in the morning more or
less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused being then a (sic)
private persons, by conspiring, confederating and mutually helping to (sic) one another, did then
and there willfully, unlawfully and feloniously enter the house owned by one DAISY DADIVASAFABLE by opened the gate and against the latters will.[1]

On 18 October 1999, petitioners filed their Joint Counter-Affidavit. [2] Thereafter, or on 21 December 1999,
petitioner Tabujara filed a Supplemental Counter-Affidavit. [3]

Petitioners denied the allegations against them. They argued that on 14 September 1999, they went to the
house of respondent to thresh out matters regarding some missing pieces of jewelry. Respondent was a former
employee of Miladay Jewels, Inc., a company owned by the Dayrits and who was then being administratively
investigated in connection with missing jewelries. Despite several summons to appear, respondent went on AWOL
(absence without official leave).

Judge Calixtro O. Adriatico of the Municipal Trial Court of Meycauayan, Bulacan, Branch II, conducted the
preliminary examination. On 7 January 2000, he issued an Order dismissing the complaints for lack of probable
cause, thus:

After a careful perusal of the allegation setforth in the complaint-affidavit, taking into
consideration the allegation likewise setforth in the counter-affidavit submitted by the
respondents and that of their witnesses, the Court finds no probable cause to proceed with trial
on the merits of the above-entitled cases.

The Court believes and so holds that the instant complaints are merely leverage to the
estafa[4] case already filed against private complainant herein Daisy Afable by the Miladay Jewels
Inc. wherein respondent Atty. Tabujara III is its legal counsel; while respondent Dayrit appears to
be one of the officers of the said company.

As could be gleaned from the record, private complainant herein Daisy Afable is being
charged with the aforestated estafa case for having allegedly embezzled several pieces of jewelry
from the Miladay Jewels Inc., worth P2,177,156.00.

WHEREFORE, let these cases be dismissed for lack of probable cause. [5]

Respondent filed a Motion for Reconsideration alleging that when she filed the complaints for grave
coercion and trespass to dwelling on 17 September 1999 against petitioners, no information for estafa has yet been
filed against her. In fact, the information was filed on 5 October 1999.

In their Opposition to the Motion for Reconsideration, petitioners argued that even before respondent filed
the criminal complaints for grave coercion and trespass to dwelling, she was already being administratively
investigated for the missing jewelries; that she was ordered preventively suspended pending said investigation;
that the theft of the Miladay jewels was reported to the Makati Police on 7 September 1999 with respondent Afable
being named as the primary suspect; that on 17 September 1999, which corresponded to the date of filing of the
criminal complaints against petitioners, the employment of respondent with Miladay, Jewels, Inc. was
terminated. Petitioners further alleged that respondent filed the criminal complaints for grave coercion and trespass
to dwelling as leverage to compel petitioners to withdraw the estafa case.

On 2 May 2000, Judge Adriatico issued an Order reversing his earlier findings of lack of probable
cause. This time, he found probable cause to hold petitioners for trial and to issue warrants of arrest, thus:

Acting on the Motion for Reconsideration filed by the private complainant herein on
January 17, 2000, with Opposition filed by the accused on January 27, 2000, taking into
consideration the Manifestation/Brief Memorandum filed by the said private complainant on March
4, 2000, the Court found cogent reason to reconsider its order dated January 7, 2000.

The sworn allegation/statement of witness Mauro V. de Lara, which was inadvertently

overlooked by the undersigned, and which states, among other things, that said witness saw the
private complainant herein being forcibly taken by three persons, referring very apparently to the
accused herein, from her residence is already sufficient to establish a prima facie evidence or
probable cause against the herein accused for the crimes being imputed against them. It is
likewise probable that accused herein could have committed the crime charged in view of their
belief that the private complainant herein had something to do with the alleged loss or
embezzlement of jewelries of the Miladay Jewels.

WHEREFORE, in order to ferret out the truth/veracity of the complainants allegation and
in order not to frustrate the ends of justice, let the above-entitled cases now be set for trial.

Let therefore warrant of arrest be issued against all the accused in Criminal Case No. 9929038 (Grave Coercions), fixing their bail for their provisional liberty in the amount of P12,000.00
for each of them.

As regard Criminal Case No. 99-29037 (Trespass to Dwelling) the same shall be governed
by the Rules on Summary Procedure.[6]

Petitioners filed a motion for reconsideration insisting that the alleged affidavit of Mauro V. de Lara on
which the court a quo based its findings of probable cause was hearsay because it was not sworn before Judge
Adriatico; that De Lara did not personally appear before the investigating judge during preliminary
investigation. However, petitioners motion for reconsideration was denied in the Order dated 14 July 2000, thus:

Acting on the Motion for Reconsideration filed by the accused, thru counsel. With
comment from the counsel of the private complainant, the Court resolves to deny the same there
being no cogent reason to reconsider the Court order dated May 2, 2000.

The Court has resolved to try the above-entitled cases on the merits so as to ferret out
the truth of the private complainants allegations and there being probable cause to warrant
criminal prosecution of the same.

The accuseds contention that the statement of witness Mauro de Lara is bereft of
credibility and that the complaints at bar were initiated merely for harassment purposes could be
ventilated well in a full blown trial.

WHEREFORE, in view of the foregoing reason, let the trial of these cases proceed as
already scheduled.[7]

Petitioners moved for clarificatory hearings which were conducted on 23 August 2000 and 31 August
2000. However, before the court a quo could render a resolution based on said clarificatory hearings, petitioners
filed on 15 September 2000 a petition for certiorari before the Regional Trial Court with prayer for issuance of
temporary restraining order and writ of preliminary injunction. [8] Petitioners sought to annul the 2 May 2000 and 14
July 2000 Orders of the court a quo for having been issued with grave abuse of discretion. Petitioners argued that
the court a quo gravely abused its discretion in issuing said Orders finding probable cause and ordering the
issuance of warrants of arrest based solely on the unsworn statement of Mauro V. de Lara who never appeared
during preliminary investigation and who was not personally examined by the investigating judge.

On 18 September 2000, Executive Judge Danilo A. Manalastas of the Regional Trial Court of Malolos,
Bulacan, Branch 7, issued an Order [9] granting a 72-hour temporary restraining order and enjoining the Municipal
Trial Court from proceeding with the prosecution of petitioners in Criminal Case Nos. 99-29037 and 99-29038.

The case was thereafter raffled to Branch 79 which rendered its Decision [10] denying the petition for
annulment of the 2 May 2000 and 14 July 2000 Orders of the Municipal Trial Court. The Regional Trial Court found
that after conducting clarificatory hearings, the court a quo issued an Order on 18 September 2000, finding
probable cause. The Regional Trial Court further ruled that any defect in the issuance of the 2 May 2000 and 14 July
2000 Orders finding probable cause based solely on the unsworn statement of Mauro V. de Lara who failed to
appear during the preliminary examination and who was not personally examined by the investigating judge, was
cured by the issuance of the 18 September 2000 Order. The Regional Trial Court reasoned, thus:

While it is true that respondent Judge Hon. Calixto O. Adriatico dismisses both criminal
cases last January 7, 2000 finding no probable cause and later on reverse himself by issuing the
question Order dated May 2, 2000 alleging among others that said Judge inadvertently overlooked
the statement of witness Mauro V. De Lara, the stubborn facts remain that whatever defects, or
shortcomings on the parts of the respondent Judge was cured when he conducted clarificatory
examination on the dates earlier mentioned in this Order. [11]

The dispositive portion of the Decision of the Regional Trial Court, reads:

RESPONSIVE OF ALL THE FOREGOING, the instant Petition for the Annulment of the
Orders of the respondent Judge dated May 2, 2000 and July 14, 2000 in criminal cases nos. 9929037 and 99-29038 (MTC-Meycauayan, Branch 2) should be as it is hereby denied for lack of
merit.

ACCORDINGLY, the Presiding Judge of branch II, the Hon. Calixto O. Adriatico may now
proceed to hear and decide crim. Cases nos. 99-29037 and 99-29038 pending before that Court.
[12]

Petitioners filed a Petition for Review before the Court of Appeals asserting that the court a quo acted with
grave abuse of discretion in basing its findings of probable cause and ordering the issuance of warrants of arrest
solely on the unsworn statement of Mauro De Lara who never appeared during preliminary investigation and who
was not personally examined by the investigating judge. Moreover, they argued that the 18 September 2000 Order

was void because it was issued by the Municipal Trial Court while the temporary restraining order issued by the
Regional Trial Court enjoining the court a quo to proceed further with the criminal complaints was in force.

However, the Court of Appeals denied the petition on the ground that petitioners resorted to the wrong
mode of appeal; i.e., instead of an ordinary appeal, petitioners filed a petition for review. [13] The dispositive portion
of the Decision of the Court of Appeals, reads:

WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby
DENIED. The Municipal Trial Court of Meycauayan, Bulacan, Branch II is directed to proceed with
the trial of Criminal Case Nos. 99-29037 and 99-29038 and to dispose of them with deliberate
dispatch.[14]

Petitioners filed a motion for reconsideration but it was denied. [15] Hence, the instant petition raising the
following assignment of errors:

I.

THE COURT OF APPEALS ERRED IN NOT RULING THAT THE TRIAL COURT HAD ACTED WITH GRAVE
ABUSE OF DISCRETION IN BASING ITS FINDING OF PROBABLE CAUSE TO HOLD PETITIONERS FOR
TRIAL ON THE MERITS AND ISSUANCE OF WARRANTS OF ARREST AGAINST THEM, UPON
AN UNSWORN STATEMENT OF A WITNESS WHO NEVER APPEARED BEFORE, NOR WAS PERSONALLY
EXAMINED BY, THE TRIAL COURT.

A. THE CONSTITUTION GUARANTEES THAT NO WARRANT OF ARREST SHALL

ISSUE EXCEPT UPON PROBABLE CAUSE TO BE DETERMINED PERSONALLY BY THE
JUDGE AND AFTER PERSONALLY EXAMINING UNDER OATH THE COMPLAINANT
AND WITNESSES.

II.

PETITIONERS ASSERT THEIR RIGHT GUARANTEED BY THE CONSTITUTION WHICH TAKES

PRECEDENCE OVER RULES OF PROCEDURE OR TECHNICALITIES.

A. IT IS WELL-SETTLED THAT THIS HONORABLE COURT IS BOUND BY THE

ALLEGATIONS IN THE PETITION AND NOT BY ITS CAPTION.[16]

Petitioners insist that the Orders of the court a quo dated 2 May 2000 and 14 July 2000 should be annulled for
having been issued with grave abuse of discretion because the finding of probable cause was based solely on the
unsworn statement of Mauro De Lara who never appeared during the preliminary examination. Petitioners also
allege that since De Lara never appeared before the investigating judge, his statement was hearsay and cannot be
used as basis for finding probable cause for the issuance of warrant of arrest or to hold petitioners liable for
trial. Granting that the statement of De Lara was subscribed before Judge Paguio, the same cannot be used as basis
because the law requires that the statement be sworn to before the investigating judge and no other.

In its Comment, respondent People of the Philippines argue that the Court of Appeals correctly dismissed petitioners
petition because they resorted to the wrong mode of appeal.

On the other hand, respondent avers that the issue on the propriety of the issuance by the court a quo of the 2 May
2000 and 14 July 2000 Orders has become moot because clarificatory hearings were thereafter conducted and
another Order dated 18 September 2000 was issued finding probable cause against petitioners; and, that the
statement of Mauro De Lara was subscribed and sworn to before Judge Orlando Paguio although it was Judge
Calixtro Adriatico who acted as the investigating judge.

The petition is meritorious.

Before proceeding to the substantive issues, we first address the issue of whether or not the Court of Appeals
properly denied the petition for review filed by the petitioners under Rule 42 of the Rules of Court.

In denying the petition for review under Section 1, [17] Rule 42 of the 1997 Rules of Court filed by petitioners, the
appellate court stressed that they availed of the wrong mode of review in bringing the case to it since the
petitioners filed an original action under Rule 65 of the Rules of Court to the RTC, the remedy availed of should have
been an appeal under Section 2(a) of Rule 41 of the Rules of Court:

SEC. 2. Modes of appeal.

(a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order appealed from and serving a copy thereof
upon the adverse party. No record on appeal shall be required except in special proceedings and
other cases of multiple or separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner. (Emphasis supplied.)

It is only when the decision of the RTC was rendered in the exercise of appellate jurisdiction would a petition for
review under Rule 42 be proper[18]

We do not agree in the conclusion arrived at by the Court of Appeals.

The present controversy involved petitioners sacrosanct right to liberty, which is protected by the
Constitution. No person should be deprived of life, liberty, or property without due process of law. [19]

While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and while
the swift unclogging of the dockets of the courts is a laudable objective, it nevertheless must not be met at the
expense of substantial justice.[20]

The Court has allowed some meritorious cases to proceed despite inherent procedural defects and
lapses. This is in keeping with the principle that rules of procedure are mere tools designed to facilitate the
attainment of justice, and that strict and rigid application of rules which would result in technicalities that tend to
frustrate rather than promote substantial justice must always be avoided. It is a far better and more prudent cause
of action for the court to excuse a technical lapse and afford the parties a review of the case to attain the ends of
justice, rather than dispose of the case on technicality and cause grave injustice to the parties, giving a false
impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice. [21]

In those rare cases to which we did not stringently apply the procedural rules, there always existed a clear
need to prevent the commission of a grave injustice. Our judicial system and the courts have always tried to
maintain a healthy balance between the strict enforcement of procedural laws and the guarantee that every litigant
is given the full opportunity for a just and proper disposition of his cause. [22]

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for
the proper and just determination of his cause, free from the constraints of technicalities. Time and again, we have
consistently held that rules must not be applied so rigidly as to override substantial justice. [23]

The Court of Appeals should have looked beyond the alleged technicalities to open the way for the
resolution of the substantive issues in the instance case. The Court of Appeals, thus, erred in dismissing petitioners
petition for review. By dismissing the said Petition, the Court of Appeals absolutely foreclosed the resolution of all
the substantive issues petitioners were repeatedly attempting to raise before the Court of Appeals.

We now proceed to the resolution of the substantive issues raised by the petitioners.

Section 2, Article III, of the 1987 Constitution, provides:

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

It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/she
may produce, and particularly describing the person to be seized.

To determine the existence of probable cause, a preliminary investigation is conducted. A 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. [24]

A preliminary investigation is required to be conducted before the filing of a complaint or information for
an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.
[25]
Thus, for cases where the penalty prescribed by law is lower than 4 years, 2 months and 1 day, a criminal
complaint may be filed directly with the prosecutor or with the Municipal Trial court. In either case, the investigating
officer (i.e., the prosecutor or the Municipal Trial Court Judge) is still required to adhere to certain procedures for the
determination of probable cause and issuance of warrant of arrest.

In the instant case, respondent directly filed the criminal complaints against petitioners for grave coercion and
trespass to dwelling before the Municipal Trial Court. The penalty prescribed by law for both offenses is arresto
mayor, which ranges from 1 month and 1 day to 6 months. Thus, Section 9, Rule 112 of the Rules of Court applies,
to wit:
SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary
Procedure.

xxxx

(b) If filed with the Municipal Trial Court. If the complaint or information is filed with the Municipal
Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in
section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint
or information, the judge finds no probable cause after personally evaluating the evidence, or
after personally examining in writing and under oath the complainant and his witnesses in the
form of searching questions and answers, he shall dismiss the same. He may, however, require
the submission of additional evidence, within ten (10) days from notice, to determine further the
existence of probable cause. If the judge still finds no probable cause despite the additional
evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss
the case. When he finds probable cause, he shall issue a warrant of arrest or a
commitment order if the accused had already been arrested, and hold him for
trial. However, if the judge is satisfied that there is no necessity for placing the
accused under custody, he may issue summons instead of a warrant of
arrest. (Emphasis supplied.)

Corollarily, Section 6 of the same Rule provides:

SEC. 6. When warrant of arrest may issue. x x x

(b) By the Municipal Trial Court. x x x [T]he judge may issue a warrant of arrest if he finds after an
examination in writing and under oath of the complainant and his 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.

Clearly, Judge Adriatico gravely abused his discretion in issuing the assailed 2 May 2000 and 14 July 2000 Orders
finding probable cause to hold petitioners liable for trial and to issue warrants of arrest because it was
based solely on the statement of witness Mauro De Lara whom Judge Adriatico did not personally examine in writing
and under oath; neither did he propound searching questions. He merely stated in the assailed 2 May 2000 Order
that he overlooked the said statement of De Lara; nevertheless, without conducting a personal examination on said
witness or propounding searching questions, Judge Adriatico still found De Laras allegations sufficient to establish
probable cause.Plainly, this falls short of the requirements imposed by no less than the Constitution.

In Sangguniang Bayan of Batac v. Judge Albano,[26] the Court found respondent judge guilty of ignorance of the law
because he failed to comply with the procedure on the issuance of warrant of arrest, thus:

Failure to comply with such procedure will make him administratively liable. In the case at
bar, respondent judge issued several warrants of arrest without examining the
complainant and his witnesses in writing and under oath, in violation of Section 6 of
Rule 112 which provides:

Sec. 6. When warrant of arrest may issue. x x x

(b) By the Municipal Trial Court. If the municipal trial judge conducting the
preliminary investigation is satisfied after an examination in writing and under
oath of the complainant and his 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, he shall issue a warrant of arrest.

The records show that respondent judge has violated the rules on preliminary investigation and
issuance of a warrant of arrest since the start of his term as municipal judge in Batac, Ilocos Norte
in September 1991. The gross ignorance of respondent judge has immensely prejudiced the
administration of justice. Parties adversely affected by his rulings dismissing their complaints after
preliminary investigation have been denied their statutory right of review that should have been
conducted by the provincial prosecutor. His practice of issuing warrants of arrest without
examining the complainants and their witnesses is improvident and could have
necessarily deprived the accused of their liberty however momentary it may be. Our
Constitution requires that all members of the judiciary must be of proven competence, integrity,
probity and independence. Respondent judges stubborn adherence to improper procedures and
his constant violation of the constitutional provision requiring him to personally
examine the complainant and the witness in writing and under oath before issuing a
warrant of arrest makes him unfit to discharge the functions of a judge.

When the investigating judge relied solely on the affidavit of witness De Lara which was not sworn to before him
and whom he failed to examine in the form of searching questions and answers, he deprived petitioners of the
opportunity to test the veracity of the allegations contained therein. Worse, petitioners arguments that De Laras
affidavit was hearsay was disregarded by the investigating judge despite the fact that the allegations therein were
completely rebutted by petitioners and their witnesses affidavits, all of whom appeared before and were personally
examined by the investigating judge. It was thus incorrect for the court a quo to rule thus:

The accuseds contention that the statement of witness Mauro de Lara is bereft of
credibility and that the complaints at bar were initiated merely for harassment purposes could be
ventilated well in a full blown trial.[27]

In sum, De Laras affidavit cannot be relied upon by the court a quo for its finding of probable cause.

In addition, this Court finds that the warrants of arrest were precipitously issued against
petitioners. Deprivation of a citizens liberty through the coercive process of a warrant of arrest is not a matter which
courts should deal with casually. Any wanton disregard of the carefully-wrought out processes established pursuant
to the Constitutions provisions on search warrants and warrants of arrest is a serious matter primarily because its
effects on the individual wrongly-detained are virtually irremediable. [28]

The procedure described in Section 6 of Rule 112 is mandatory because failure to follow the same would
amount to a denial of due process. With respect to the issuance by inferior courts of warrants of arrest, it is
necessary that the judge be satisfied that probable cause exists: 1) through an examination under oath and in
writing of the complainant and his witnesses; which examination should be 2) in the form of searching questions
and answers. This rule is not merely a procedural but a substantive rule because it gives flesh to two of the most
sacrosanct guarantees found in the fundamental law: the guarantee against unreasonable searches and seizures
and the due process requirement.[29]

The issuance of warrants of arrest is not mandatory. The investigating judge must find that there is a
necessity of placing the petitioners herein under immediate custody in order not to frustrate the ends of justice.
[30]
Perusal of the records shows no necessity for the immediate issuance of warrants of arrest. Petitioners are not
flight risk and have no prior criminal records.

Respondents contention that any defect in the 2 May 2000 and 14 July 2000 Orders of the court a quo has
been cured by its 18 September 2000 Order is flawed. It will be recalled that on 15 September 2000, petitioners
filed a petition for certiorari before the Regional Trial Court of Meycauayan, Bulacan. On 18 September 2000,
Executive Judge Manalastas issued a temporary restraining order enjoining the court a quo from conducting further
proceedings in Criminal Cases Nos. 99-29037 and 99-29038. However, in contravention of said restraining order,
the court a quo issued its Order on even date, i.e., 18 September 2000, finding probable cause against petitioners
holding them liable for trial and ordering the issuance of warrants of arrest. Considering that the court a quos 18
September 2000 Order was issued during the effectivity of the temporary restraining order, the same is considered
of no effect.

WHEREFORE, the petition is GRANTED. The assailed 24 February 2004 Decision of the Court of Appeals
in CA-G.R. SP No. 63280 denying petitioners petition for review and directing the Municipal Trial Court of
Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well
as the 23 October 2006 Resolution denying the motion for reconsideration, are REVERSED and SET ASIDE. The
Municipal Trial Court of Meycauayan, Bulacan, Branch 11, isDIRECTED to dismiss Criminal Cases Nos. 99-29037 and
99-29038 for lack of probable cause and to quash the warrants of arrest against petitioners for having been
irregularly and precipitously issued.

SO ORDERED.

RAMOS V PEOPLE
This is a Petition for Review under Rule 45 of the Rules of Court challenging: (1) the July 29, 2005 Resolution [1] of
the Court of Appeals, in CA-G.R. SP No. 90344,[2]dismissing outright the petition for review (under Rule 42) filed by
petitioner Antonio B. Ramos; and (2) the February 14, 2006 Resolution[3] of the same court denying his Motion for
Reconsideration.

On January 15, 1999, the petitioner filed an Affidavit-Complaint,[4] pertinent portions of which allege:

1. I am the lawful assignee of shares of stock covered by the following stock

certificates: (a) Travellers Life Assurance of the Philippines, Inc. (TLAP) Stock Certificate Nos. 313
and 314, and (b) Travellers Insurance & Surety Corporation (TRISCO) Stock Certificate Nos. 173
and 174, by virtue of a Deed of Assignment executed by the respondent Emerito M. Ramos, Sr.
and his wife (my mother) Susana B. Ramos in my favor in August 1994.

xxxxxxxxx
2. Sometime in August 13, 1996, Gloria Ramos Lagdameo, EVP/Treasurer of Travellers
Insurance & Surety Corporation (TRISCO), and having been entrusted by Antonio B. Ramos with
the safekeeping of the aforesaid stock certificates turned over the same to Emerito Ramos, Sr. at
his insistence, and as such knew that they were actually indorsed in my name in 1994, as shown
in her affidavit, x x x.[5]

3. After receiving the said stock certificates,

3.1 the respondents, Emerito M. Ramos, Sr. and Rogerio H. Escobal, conspiring
and conniving with one another altered the four (4) aforementioned stock
certificates by the erasure of the entry ANTONIO B. RAMOS and the
superimposition of the type-written entry E.M. Ramos & Sons, Inc. on the
dorsal side of each of the four questioned stock certificates, as supported
by the Questioned Documents Report No. 652-998 of the National Bureau
of Investigation, and

3.2 The respondent Escobal upon the prodding of and with the criminal assent
of the respondent Ramos, and in his own handwriting, altered the true
date when Susana B. Ramos endorsed both TRISCO and TLAP Stock
Certificate Nos. 174 and 314 making it falsely appear that Susana B.
Ramos indorsed both Stock Certificates with intent to assign the same on
January 19, 1998 when in truth Travelers Insurance & Surety Corporation
(TRISCO) Stock Certificate Nos. 173 and 174, by virtue of a Deed of
Assignment, was indorsed in my favor, as early as in August 1994.
xxxxxxxxx

4. The alteration made on the aforementioned genuine documents by the respondents has
changed the meaning of the same, for their own personal use and benefit, by:

4.1. Making it falsely appear that the assignee of the questioned stock
certificates is E.M. Ramos & Sons instead of Antonio B. Ramos, as the
lawful and legal assignee of the shares of stock covered by the aforesaid
stock certificates.

4.2. Making it falsely appear that Susana B. Ramos indorsed both Stock
Certificates with intent to assign the same on January 19, 1998 when she
could not have done so because as early as September 1996, Susana B.
Ramos was already physically incapable of signing any documents as
supported by the statement of Alberto Alcancia, Ricardo Deliza and
Analia Ogario, and Maria Cecilia Santiago, and a Medical Summary made
on her medical condition by Martesio C. Perez, M.D., affecting therefore
the veracity of the above document purporting an assignment made by
her in favor of E.M. RAMOS & SONS, INC. on the said date.

After the preliminary investigation, the Investigating Prosecutor issued a Resolution, dated April 20, 1999,
finding probable cause and recommending that both respondents Emerito M. Ramos, Sr. and Rogerio H. Escobal
be indicted for violation of paragraph 1 of Article 172 in relation to
[6]

paragraph 6 of Article 171 of the Revised Penal Code (RPC). [7] Specifically, Assistant City Prosecutor Arthur O.
Malabaguio pointed out that:
The first issue to be resolved is whether or not probable cause exists for falsification of
document.

A thorough and careful examination of the evidence presented would show that there is
probable cause for falsification of documents.

Respondent Emerito Ramos admitted in his sworn statement that he caused the erasure
of the name of the complainant as the assignee in the dorsal portion of the subject certificates of
stock and superimposed therein the name E.M. Ramos & Sons, Inc. as the new assignee.

Respondents tried to justify such action by stating that complainant failed to comply with the
prestation required of him in the Deed of Assignment executed on 17 August 1994. In the exercise
of [their] right of dominion, as Emerito Ramos Sr. and Susana Ramos were still the registered
owners of subject shares of stocks, complainants name was erased and substituted by another in
all four stock certificates.

The defense invoked by the respondents is untenable. In the absence of any evidence to the
contrary, the deed of assignment executed on 17 August 1994 between complainant and spouses
Ramos should be treated as valid and subsisting. By virtue of the execution of this document, the
name of complainant as assignee appeared on subject certificates of stock.

There is no showing that this deed of assignment was later nullified or declared void by failure of
the complainant to fulfill his undertaking as declared in the deed of assignment. On the other
hand, respondent Emerito Ramos Sr. by his own unilateral action, rescinded the contract and
subsequently decided to assign subject shares of stocks to EMRASON. Complainant questioned
this action of Emerito Ramos Sr. and even filed with Securities and Exchange Commission an
action for nullity of assignment of shares and other reliefs (SEC Case No. 03-98-5955).

In the absence of proof that there was [a] valid rescission of the first Deed of Assignment, [the]
validity of the execution of the Second Deed of Assignment is now placed in question. Respondent
Emerito Ramos Sr. could not now invoke defense that substitution of Antonio Ramos to E.M.
Ramos and Sons, Inc. was made to speak the truth.

In any case, it was established that respondents made the alterations as borne out by their sworn
statements making them liable for falsification of documents.

Anent the date January 19, 1998 in the subject stock certificates, there appears to be a conflict in
relation to the allegations of the opposing parties. Complainant claims that respondents erased
the original date and superimposed the same with the date January 19, 1998 making them liable
under paragraph (5) (altering true dates) of Article 171 in relation to Article 172 of the Revised
Penal Code. Respondents maintain that prior to the filling up of the date, there was already a
blank space and respondent Rogerio Escobal was required to fill it up with the date January 19,
1998 to conform with the date the second deed of assignment was made.

Complainant failed to have this part of the document examined by the NBI unlike in the case of
the name of the assignee wherein the NBI made its findings. In the absence of this, it is safe to
assume, as admitted by the respondents themselves, that the date January 19, 1998 was placed
by Rogerio Escobal in a blank space appearing on said documents. Therefore, violation of
paragraph 6 and not paragraph 5 of Article 171 in relation to Article 172 of the Revised Penal
Code was committed.

The second issue to be resolved is whether or not respondents conspired to commit the offense of
falsification of document.

It should be noted that respondent Rogerio Escobal occupies [a] high position in
EMRASON (Senior Vice-President thereof). As such, he could have known of the details of the
special meeting of the Board of Directors of EMRASON held on January 14, 1998 concerning the
assignment of shares of stock of spouses Emerito Ramos and Susana Ramos the very same
shares of stock subject matter of this complaint. He could have known that the Board of Directors
of EMRASON accepted the offer of payment by spouses Ramos by way of assignment of subject
shares of stock to EMRASON.

At the time respondent Rogerio Escobal assigned the different certificates of stock on April 19,
1998[,] it should be assumed that [, as witness] he read the contents of the documents before
affixing his signature. Perusal of the documents would remind him of the subject of [the] special
meeting held on January 14, 1998.

Moreover, it was shown by the complainant that it was not true that it was only [on] 19 January
1998 that respondent Rogerio Escobal saw [the] subject certificates[,] as he was present along
with Col. Nicolas, Mr. & Mrs. Lagdameo and Mr. Romeo Isidro when the deed of assignment,
together with the indorsement of subject stocks certificates[,] were executed in complainants
favor in August 1994.

In fine, complainant was able to establish by sufficient evidence that respondents conspired with
one another in erasing his name as assignee in subject stock certificates and substituted it with
E.M. RAMOS & SONS, INC.[,] and placing the date January 19, 1998 as the date of execution of the
first deed of assignment[,] in violation of paragraph 1 of Article 172 in relation to paragraph 6 of
Article 172 of the Revised Penal Code.

WHEREFORE, premises considered, it is respectfully recommended that both respondents

be indicted for violation of above-mentioned provisions of law.

Corollarily, four (4) separate Informations, [8] charging private respondents Emerito Ramos, Sr. and Rogerio
H. Escobal with the crime of Falsification of Commercial Document under paragraph 1 of Article 172 in relation to
paragraph 6 of Article 171 of the RPC, were filed. Those were docketed as Criminal Case Nos. 94961-94964, and
raffled to the Metropolitan Trial Court (MeTC) of Quezon City, Branch 43.

When these cases were called for arraignment and pre-trial, counsel for the accused manifested that an
Omnibus Motion to Dismiss the cases against Ramos, Sr. had been filed on the ground that he already passed
away. Counsel also moved for the deferment of the arraignment of the other accused, Rogerio Escobal (Escobal),
considering that there was, before the Office of the Assistant City Prosecutor, a pending Motion for
Reconsideration[9] of the Resolution (dated April 20, 1999) recommending the filing of these cases.The MeTC denied
the latter motion and ordered the entry of a plea of NOT guilty because private respondent refused to enter a plea.
[10]

The Motion for Reconsideration presented two (2) issues, to wit: (1) whether or not probable cause exists
for falsification of document; and (2) whether or not respondents conspired to commit the offense of falsification of
document.[11]
Anent the first issue, private respondent Escobal argued that Article 1191[12] of the Civil Code finds
application. He explained that on the basis of the said provision, private respondent Ramos, Sr. cannot be held
criminally liable for the consequences of the performance of a lawful act, i.e., the rescission of the Deed of
Assignment executed earlier in favor of complainant (petitioner Ramos), who failed to comply with the prestations
required of him under the Deed, which rescission necessarily resulted in the cancellation or erasure of the name of
complainant as assignee in the subject stock certificates.

As regards the second issue, private respondent Escobal averred that conspiracy was NOT proved as the
crime itself through clear and convincing evidence.

On November 23, 1999, the Office of the City Prosecutor issued a Resolution [13] granting the Motion for
Reconsideration and recommending that the Informations against both accused be withdrawn. The Office of the City
Prosecutor made the following explanations:

(1) The Deed of Assignment executed on August 17, 1994 clearly indicated the obligation
of complainant (petitioner Ramos) to transfer his one-tenth (1/10) share in the real properties
located in North Susana and North Olympus subdivisions and one-tenth (1/10) portion in the
undivided one-hectare, all in Quezon City.Apparently, the stock certificates were purposely placed
in the custody of TRISCO Executive Vice President Gloria R. Lagdameo. No evidence showing that
the assignment has been recorded in the companys stock and transfer book. Respondent E.
Ramos, therefore, has the authority to rescind the contract unilaterally in the exercise of a right
granted under Article 1191 of the New Civil Code.

(2) Respondent E. Ramos, having acted in good faith, never denied authorship of the
cancellation or erasure. He even placed his signatures to indicate that he was the one who caused
the erasures. Hence, in so doing he acted without malice. Generally, the word alteration has
inherent in it the idea of deception of making the instrument speak something which the parties
did not intend to speak. To be an alteration in violation of the law, it must be one which causes
the instrument to speak a language different in legal effect from that which it originally spoke. In
this case, complainant ceased to be the assignee of the certificates of stock, the corrections made
by respondent speaks only of the truth.

(3) As it appears that the liability of respondent Rogerio Escobal only depends on the
criminal liability of Ernesto Ramos, there is no reason for further prosecution.

On January 7, 2000, Assistant City Prosecutor Antonio R. Lim, Jr. filed with the MeTC of Quezon City, Branch
43 a Motion with Leave of Court to Withdraw Information. [14]

Petitioner appealed before the Department of Justice (DOJ) and on February 15, 2002, the DOJ sustained
the November 23, 1999 Resolution of the Office of the City Prosecutor of Quezon City. [15] Petitioners Motion for
Reconsideration was likewise denied.[16]

On March 14, 2003, the MeTC of Quezon City, Branch 43 dismissed Criminal Case Nos. 94961-64. The trial
court was convinced with the finding of the City Prosecutor, which was sustained by the DOJ, that probable cause
for the falsification of commercial documents against the remaining accused, Escobal, did not exist. [17]

The MeTC enumerated the elements of falsification of commercial documents under paragraph 6 of Article
171 of the RPC. Thus:

1.

That there be an alteration (change) or intercalation (insertion) on a document;

2.

That it was made on a genuine document;

3.

That the alteration or intercalation has changed the meaning of the document; and

4.

That the change made the document speak something false.

The MeTC ruled that the referred alterations committed by accused E. Ramos in changing the name of the
indorsee of the stock certificates from that of the complainant Antonio Ramos to E.M. RAMOS & SONS, INC., could
not be considered as the falsification contemplated by the law as the change did not make the document speak
something false. The commercial documents subject of these cases were admittedly altered by the accused Ramos,
Sr., purposely to correct the inequity brought about by the failure of petitioner Ramos to comply with what was
incumbent upon him under their agreement.

The private prosecutors filed a Motion for Reconsideration. [18]

Private respondent Escobal filed his Comment/Opposition. [19] Private prosecutors, thereafter, filed their
Reply.

[20]

On August 15, 2003, the MeTC finally resolved to DENY the Motion for Reconsideration of the private
prosecutors.[21]

On November 3, 2003, petitioner Ramos (complainant in the criminal cases) filed a Petition for Certiorari,
Prohibition and Mandamus with the Regional Trial Court of Quezon City (RTC). The same was docketed as Civil Case
No. Q03-51042.[22] Petitioner presented the following grounds:

(a)

THE RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION WHEN SHE ORDERED THE
DISMISSAL OF THE INSTANT CASE FOR LACK OF PROBABLE CAUSE DESPITE HER PREVIOUS
DETERMINATION OF THE EXISTENCE THEREOF WHEN SHE ISSUED A WARRANT OF ARREST.

(b)

THE RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION BY ALLOWING THE UNDUE
INTERFERENCE OF THE DEPARTMENT OF JUSTICE WITH THE INSTANT CASE AFTER HAVING
ALREADY MADE A PERSONAL EXAMINATION OF PROBABLE CAUSE FOR THE ISSUANCE OF A
WARRANT OF ARREST

(c)

THE RESPONDENT JUDGES BASELESS DISMISSAL OF THE INSTANT CASE GROSSLY

VIOLATED THE PROSECUTIONS RIGHT TO DUE PROCESS, IN GRAVE ABUSE OF DISCRETION. [23]

On January 3, 2005, the RTC of Quezon City, Branch 215 dismissed the petition for lack of merit. [24] The RTC
explained that once an Information or complaint was filed in court, the matter of the disposition of the case would
be left to the sound discretion of the court. When the trial court in this case reconsidered or reversed its previous
finding of probable cause and granted the motion to dismiss of the public prosecutor, it was acting within its
prerogative since the matter rested upon its sound discretion. The ruling made by the MeTC in dismissing the cases
before it, was not simply derived from its own whims and caprices but after a judicious reassessment of the records
of the case. The RTC also cited the case of Crespo v. Mogul[25] where it was held 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.

On June 8, 2005, the RTC denied the Motion for Reconsideration of the petitioner.[26]

Petitioner then sought relief from the Court of Appeals via a Petition for Review under Rule 42 of the Rules
of Court. Petitioner assailed the January 3, 2005 Decision and the June 8, 2005 Resolution of the RTC.

In its challenged July 29, 2005 Resolution,[27] the Court of Appeals dismissed outright the petition filed by
petitioner. Specifically, the Court of Appeals pointed out that:

x x x a petition for review under Rule 42 of the Revised Rules on Civil Procedure may be
availed of only if the assailed decision of the Regional Trial Court was rendered in the exercise of
the latters appellate jurisdiction, such as when a plaintiff files an action for ejectment or sum of
money, etc. before the Municipal or Metropolitan Trial Court against a defendant and said court
renders judgment thereon. If the losing party appeals the decision of the Municipal or
Metropolitan Trial Court to the Regional Trial Court and the latter exercising its appellate court,
affirms or reverses the decision, then a petition for review filed by the losing party before this
Court under Rule 42 of the revised Rules on Civil Procedure is in order.

However, in the case at bench, it clearly appears that the Regional Trial Court of Quezon City that
renders the assailed Decision of January 3, 2005 and Order of June 8, 2005rendered the same
pursuant to its original jurisdiction to assume to hear and resolve petitions for certiorari under
Rule 65 of the Revised Rules on Civil Procedure. Because the Regional Trial Court of Quezon City
herein had assumed jurisdiction and decided the petition for certiorari filed by herein petitioner
pursuant to its original jurisdiction as provided by law, the proper mode for petitioner to assail the
subject Decision and Order of the Regional Trial Court of Quezon City is by ordinary appeal under
Rule 41 of the revised Rules on Civil Procedure by filing a notice of appeal with the Regional Trial
Court of Quezon City within the reglementary period as provided under Sec. 3 of Rule 41 of the
revised rules on Civil Procedure and when the appeal is perfected, the Court a quo will elevate the
entire record of this case to this Court, and thereafter, instead of briefs, the parties will be
required to file their respective memorandum pursuant to Section 10 Rule 44 of the revised Rules
on Procedure.

In the other challenged Resolution dated February 14, 2006,[28] the Court of Appeals denied the Motion for
Reconsideration of petitioner.

Hence, this petition under Rule 45 challenging the above Resolutions of the Court of Appeals anchored on
the following grounds:[29]
(A)

THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE PETITION FOR REVIEW FILED
UNDER RULE 42 OF THE 1997 REVISED RULES OF CIVIL PROCEDURE DESPITE THE FACT
THAT THE SAME IS A PROPER MODE TO QUESTION THE REGIONAL TRIAL COURTS
ORDERS.

(B)

THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE PETITION FOR REVIEW
FILED UNDER RULE 42 OF THE 1997 RULES OF CIVIL PROCEDURE ASIT DENIED THE
PETITIONER OF THE FULL OPPORTUNITY TO ESTABLISH THE MERITS OF HIS CAUSE,
RELYING SOLELY ON TECHNICALITY AT THE EXPENSE [OF] THE PETITIONERS
SUBSTANTIVE RIGHTS.

(C)

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO RESOLVE THE PETITION

FOR REVIEW ON THE MERITS DESPITE THE CLEAR REVERSIBLE ERROR COMMITTED BY
THE REGIONAL TRIAL COURT WHEN IT AFFIRMED THE METROPOLITAN TRIAL COURTS
ORDERS DISMISSING CRIMINAL CASE NOS. 94961 TO 94964 WITHOUT TRIAL ON THE
MERITS, THEREBY SANCTIONING A DENIAL OF DUE PROCESS OF LAW.

(D)

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO RESOLVE THE PETITION FOR
REVIEW ON THE MERITS NOTWITHSTANDING THE PATENT ERROR COMMITTED BY THE
REGIONAL TRIAL COURT WHEN IT AFFIRMED THE METROPOLITAN TRIAL COURTS
ORDERS DISMISSING CRIMINAL CASE NOS. 94961 TO 94964 ON THE SOLE BASIS OF THE
RESOLUTION OF THE DEPARTMENT OF JUSTICE, THEREBY SANCTIONING AN ABDICATION
OF JUDICIAL DUTY AND JURISDICTION.

(E)

THE COURT OF APPEALS GRAVELY ERRED IN DENYING DUE COURSE TO THE PETITION
FOR REVIEW DESPITE THE PALPABLE ERROR COMMITTED BY THE REGIONAL TRIAL
COURT IN UPHOLDING THE METROPOLITAN TRIAL COURTS ORDERS DISMISSING
CRIMINAL CASE NOS. 94961 TO 94964 FOR LACK OF PROBABLE CAUSE DESPITE
OVERWHELMING EVIDENCE SHOWING ITS EXISTENCE.[30]

The grounds raised by the petitioner boil down to one basic issue whether or not the Court of Appeals
erred in dismissing the petition under Rule 42 filed by herein petitioner before it.

We resolve the issue in the negative.

The Court of Appeals was correct in dismissing the petition outright. Under the Rules, appeals to the Court
of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by
petition for review under Rule 42.[31] What was filed by the petitioner before the RTC was a petition for certiorari
under Rule 65.

It has long been settled that certiorari, as a special civil action, is an original action invoking the original
jurisdiction of a court to annul or modify the proceedings of a tribunal, board or officer exercising judicial or quasijudicial functions. It is an original and independent action that is not part of the trial or the proceedings of the
complaint filed before the trial court. [32] The petition for certiorari, therefore, before the RTC is a separate and
distinct action from the criminal cases resolved by the MeTC.

It is true that litigation is not a game of technicalities and that the rules of procedure should not be strictly
followed in the interest of substantial justice. However, it does not mean that the Rules of Court may be ignored at
will. It bears emphasizing that procedural rules should not be belittled or dismissed simply because their nonobservance may have resulted in prejudice to a partys substantial rights. Like all rules, they are required to be
followed except only for the most persuasive of reasons. [33] In this case, there was nary a cogent reason to depart
from the general rule.

Indeed, the ground alone that petitioner resorted to an improper remedy, makes the petition dismissible
and undeserving of the Courts attention.
Even if the Court glosses over such infirmity, the petition should nonetheless be dismissed for lack of
substantive merit.

Once a criminal action has been instituted by the filing of the Information with the court, the latter
acquires jurisdiction and has the authority to determine whether to dismiss the case or convict or acquit the
accused. Where the prosecution is convinced that the evidence is insufficient to establish the guilt of an accused, it
cannot be faulted for moving for the withdrawal of the Information. However, in granting or denying the motion to
withdraw, the court must judiciously evaluate the evidence in the hands of the prosecution. The court must itself
be convinced that there is indeed no satisfactory evidence against the accused and this conclusion can only be
reached after an assessment of the evidence in the possession of the prosecution. [34] In this case, the trial court had
sufficiently explained the reasons for granting the motion for the withdrawal of the Information. The Court agrees
with the dispositions made by the trial court. Corollarily, the RTC did not err in dismissing the petition (under Rule
65) filed by petitioner challenging the ruling of the MeTC.

It bears emphasizing that when the trial court grants a motion of the public prosecutor to withdraw the Information
in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of
compliance to or defiance of the directive of the Secretary of Justice, but in sound and faithful exercise of its judicial
prerogative.The trial court is the best and sole judge on what to do with the case before it. The rule applies to a
motion to withdraw the Information or to dismiss the case even before or after the arraignment of the accused.

[35]

The prior determination of probable cause by the trial court does not in any way bar a contrary finding upon
reassessment of the evidence presented before it.

WHEREFORE, the petition is DENIED. The Resolutions dated July 29, 2005 and February 14, 2006 of the
Court of Appeals are AFFIRMED.

SO ORDERED.

FLORES V HON. GONZALES

This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court assailing the Decision [2] dated March
6, 2008 and the Resolution[3] dated May 28, 2009 of the Court of Appeals (CA) in CA G.R. CEB SP No. 02726.

The antecedent facts and proceedings follow:

On June 24, 2004, petitioner Leonardo U. Flores (Flores) filed a complaint-affidavit [4] against private respondent
Eugene Lim (Lim) for estafa before the City Prosecutor of Cebu City, docketed as I.S. No. 04-5228-F.

Briefly, the complaint alleged that, during the pre-incorporation stage of Enviroboard Manufacturing, Inc.
(EMI) in October 1996, Lim tricked Flores and the other EMIs incorporators (Flores, et al.) to purchase two compact
processing equipments, CP15 and CP14, from Compak System Limited, Inc. (Compak) in Great Britain for the
manufacture of Fiber Boards. Unknown to Flores, Lim was connected with Bendez International Corporation
(Bendez), the exclusive distributor of Compak. Flores executed an agreement to purchase only a CP15. After the
execution of the sales contract and due to some delay in the delivery of the CP15, Lim, through insidious words and
deliberate bad faith, was able to convince Flores, et al. to purchase instead an unused but later model of the
compact processing equipment, CP14, for 1,466,000.00 or P60,106,000.00, with the assurance that Lim could effect
the cancellation of the purchase for the CP15. Flores, et al. agreed and purchased the CP14, using their funds
allotted for the CP15. Later, however, Lim told them that the purchase of the CP15 could not be cancelled. Out of
fear of lawsuits and acting upon the advice of Lim, Flores, et al. raised the necessary funds through bank loans to
pay for the CP15. Then in 2001, Flores, et al. discovered the distributorship agreement between Bendez and
Compak. Upon further investigation, they learned that the purchase price of the CP14 was only 908,140.00
or P38,174,618.16 (at the conversion of P41.80) per the Letter of Credit (LC) No. 263-C-6-00073 [5], Proforma Invoice
No. CP627A dated June 18, 1996[6] and the Ocean Bill of Lading[7] relative to these documents.
Lim filed his counter-affidavit[8] denying all the accusations against him. Among others, he insisted that the
CP14 was actually priced at P60,106,000.00, and LC No. 263-C-6-00073 represented only part of the payment for
the purchase price. To support his refutations, he submitted a Contract Payment Receipt [9] dated August 20, 1996
showing that the full price of a CP14, in reference to Proforma Invoice No. CP627B dated March 4, 1996, was
actually 1,466,000.00 or P60,106,000.00. He also submitted documents showing that a CP10, an older model of the
CP14 was already priced at 1,031,585.00.[10]

After further exchange of pleadings and the case was submitted for resolution, the City Prosecutor of Cebu City
issued a Resolution[11] dated January 16, 2005 dismissing the complaint for lack of probable cause. The motion for
reconsideration[12] filed by Flores was denied in a Resolution[13] dated June 2, 2005.

On July 12, 2005, Flores filed a petition for review [14] with the Secretary of Justice questioning the January 16, 2005
and the June 2, 2005 Resolutions. Lim opposed this petition.[15]

In a Resolution[16] dated March 2, 2006, the Secretary of Justice dismissed the petition on the ground that there was
no showing of any reversible error on the part of the handling prosecutors, and for Flores failure to append several
documents to his petition.

Flores moved for a reconsideration of this Resolution. [17] Lim opposed,[18] to which Flores replied.[19]

In his Resolution[20] dated May 31, 2006, the Secretary of Justice reconsidered, disposing thus

WHEREFORE, premises considered, the assailed resolution is hereby REVERSED and SET
ASIDE. The City Prosecutor of Cebu City is hereby directed to file an information for other deceits
defined and penalized under Article 318 of the Revised Penal Code before the Municipal Trial Court
in Cities, Cebu City, and to report the action taken thereon within ten (10) days from receipt
hereof.

SO ORDERED.[21]

Pursuant to the said directive, the Cebu City Prosecutor filed with the Municipal Trial Court in Cities
(MTCC), Cebu City an Information[22] against Lim for the crime of Other Deceits under Article 318 of the Revised
Penal Code. The case was docketed as Criminal Case No. 135467-R and was raffled to Branch 4.

Lim thus filed a motion for reconsideration [23] of the May 31, 2006 Resolution. Flores opposed.[24] Lim replied.
[25]
Flores filed a rejoinder.[26]
On March 22, 2007, the Secretary of Justice reconsidered anew and issued another Resolution, [27] disposing as
follows

WHEREFORE, finding respondents motion for reconsideration to be meritorious, the

Resolution dated May 31, 2006 is REVERSED. The instant petition for review is hereby DISMISSED
WITH FINALITY.

Consequently, the Office of the City Prosecutor is hereby directed to withdraw the
information, if any had been filed in Court, and report the action taken thereon within ten (10)
days from receipt hereof.

SO ORDERED.[28]

Accordingly, on May 3, 2007, the Cebu City Prosecutor filed with the MTCC a Motion to Withdraw Information. [29]

Seeking to nullify the March 22, 2007 Resolution, Flores filed a petition for certiorari[30] with the Court of Appeals on
May 22, 2007.

Meanwhile, on June 20, 2007, the MTCC issued its Resolution [31] denying
Information. Ratiocinating on the denial of the motion, it declared

the

Motion

to

Withdraw

The Court notes the flip-flopping of the Public Prosecutors, notably the Secretary of Justice in the
instant case. On January 16, 2005, the Investigating Prosecutor dismissed the case for lack of

probable cause. After his Motion for Reconsideration was denied, the private complainant
appealed to the Secretary of Justice who, however, dismissed the same on a technicality. Private
complainant filed a Motion for Reconsideration which the Secretary of Justice granted on Mary 31,
2006. In that Resolution, the City Prosecutor of Cebu was directed to file within ten (10) days from
receipt, an Information charging Accused with the crime of Other Deceits under Article 318 of the
Revised Penal Code. Now the same Secretary of Justice has reversed himself again and, through
his subordinates, is asking the Court to withdraw the Information.

The Court has conformably to the doctrine laid down in Crespo and other cases made
its own independent assessment of the evidence thus far submitted and is convinced
that there exists probable cause to hold accused to trial where the parties can better
ventilate their respective claims and defense[s]. [32] (Emphasis supplied.)

On June 29, 2007, Flores filed a Manifestation[33] with the Court of Appeals, attaching the June 20, 2007 Resolution of
the MTCC.

Meanwhile, Lim, on July 20, 2007, moved to reconsider the June 20, 2007 MTCC Resolution. [34]

On August 20, 2007, the Office of the Solicitor General (OSG) filed with the Court of Appeals its Manifestation and
Motion in lieu of Comment. [35] The OSGs position was that the Secretary of Justice acted with grave abuse of
discretion in dismissing the complaint and directing the withdrawal of the Information. Lim filed his Comment[36] on
September 28, 2007. Flores filed his Reply[37] to Lims Comment on November 8, 2007.

In the meantime, on November 26, 2007, the MTCC issued an Order [38] holding in abeyance the proceedings
pending before it, including the resolution of Lims motion for reconsideration of the denial of the Motion to Withdraw
Information. It held

In a manner of speaking, the subject incident is straddling on two horses. The ardent desire of the
private complainant to prosecute the accused is evident when he filed the petition before the
Hon. Court of Appeals to question the Resolution of the Hon. Secretary of Justice. There is nothing
wrong to be zealous in prosecuting an accused except that his chosen approach coupled with the
fact that this court chose to disregard the subject Resolution and insists on its jurisdiction over the
case result in a procedural disorder or confusion. This is taking into account the unquestionable
primacy of the Hon. Court of Appeals over this court by virtue of which any action or resolution by
this court on the issue can be negated or voided by the former. By reason of such primacy, this
court ought to defer to the Hon. Court of Appeals and observe judicial courtesy to a superior
court.

The outcome of the pending case before the Hon. Court of Appeals questioning the resolution and
order of the Hon. Secretary of Justice will eventually determine the merit of the resolution of this
court in denying the motion to withdraw filed by the prosecution acting on the order of the Hon.
Secretary of Justice.

Hypothetically, if the Hon. Court of Appeals will sustain the Hon. Secretary of Justice, how can this
court take a posture different from that of a superior court and insist[s] on hearing this
case.Conversely, if the Hon. Court of Appeals will sustain the private complainant, it will, in effect,
sustain the resolution of this court denying the motion to withdraw Information, and render the
motion for reconsideration of the public prosecution moot and academic. In such a case, the
prosecution of the accused will have to proceed.

If the court will proceed with this case but the Hon. Secretary of Justice will be eventually upheld
by the Hon. Court of Appeals, all the proceeding[s] already had in this court would become
useless and wasted, including the time and efforts of all parties concerned.

Furthermore, to continue with the proceedings in this case while a case that matters is pending in
the Hon. Court of Appeals will constitute discourtesy and disrespect to a superior court. That there
is no injunction or restraint on this court to proceed with this case is not an issue since in the first
place it was the private complainant and not the public prosecutor or the accused who initiated
the petition for certiorari in the Hon. Court of Appeals. In fact, judicial courtesy and respect dictate
that the private complainant ought to initiate the suspension of the proceedings of the case in this
court while the petition is pending, or if he wants the proceedings herein to continue, then he
should have initiated the withdrawal or termination of the case he filed in the Hon. Court of
Appeals.[39]

On March 8, 2008, the Court of Appeals promulgated the questioned Decision finding no grave abuse of discretion
on the part of the Secretary of Justice in issuing his March 22, 2007 Resolution.

Flores filed a motion for reconsideration of the March 8, 2008 Decision. The Court of Appeals denied it in its
Resolution dated May 28, 2009. Hence, this petition anchored on the following issues:

I.

WHETHER OR NOT THE JUNE 20, 2007 RESOLUTION OF THE MUNICIPAL

TRIAL COURT, DENYING RESPONDENT LIMS MOTION TO WITHDRAW
INFORMATION AND FINDING PROBABLE CAUSE, RENDERED THE DISPOSITION
OF THE PETITION BEFORE [THE] COURT OF APPEALS ACADEMIC?

II.

WHETHER OR NOT THE HON. SECRETARY OF JUSTICE COULD RULE IN A

PRELIMINARY INVESTIGATION ON THE VALIDITY, WEIGHT, ADMISSIBILITY, AND
MERITS OF PARTIES DEFENSES, EVIDENCE, AND ACCUSATION?

In gist, Flores asserts in his petition that the June 20, 2007 Resolution of the MTCC denying the Motion to
Withdraw filed by the prosecution and finding probable cause to hold Lim for trial for the crime of Other Deceits
under Article 318 of the Revised Penal Code rendered his petition for certiorari before the Court of Appeals moot
and academic.He says that this is pursuant to the ruling in the landmark case of Crespo v. Mogul[40] that once a
complaint or information is filed in court, any disposition of the case resulting either in the conviction or acquittal of
the accused rests in the sound discretion of the court, who is the best and sole judge on what action to take in the
case before it.

Flores further argues that the Secretary of Justice overstepped his jurisdiction in the determination of
probable cause when he ruled during the preliminary investigation on the validity, weight, admissibility and merits

of the parties evidence. According to him, these matters are better ventilated before the court during the trial
proper.

Our Ruling

With respect to the first issue, we rule in the affirmative. Indeed, as Crespo declared

[O]nce 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. [41]

In this case, on a petition for review, the Secretary of Justice found probable cause for Other Deceits against Lim;
thus, the proper Information was filed in Court pursuant to the directive of the Secretary of Justice. Upon filing of the
Information, the MTCC acquired jurisdiction over the case.

Lim filed a motion for reconsideration of the May 31, 2006 Resolution of the Secretary of Justice. There was nothing
procedurally infirm in this course of action inasmuch as there is nothing in Crespo that bars the Secretary of Justice
from reviewing resolutions of his subordinates in an appeal or petition for review in criminal cases. The Secretary of
Justice was merely advised in Crespo that, as far as practicable, he should not take cognizance of an appeal when
the complaint or information is already filed in court. [42]

This is also true with respect to a motion for reconsideration before the Secretary of Justice. Review,
whether on appeal or on motion for reconsideration, as an act of supervision and control by the Secretary of Justice
over the prosecutors, finds basis in the doctrine of exhaustion of administrative remedies which holds that
mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative
agency may be corrected by higher administrative authorities, and not directly by courts. As a rule, only after
administrative remedies are exhausted may judicial recourse be allowed. [43] In any case, the grant of a motion to
dismiss or a motion to withdraw the information, which the prosecution may file after the Secretary of Justice
reverses the finding of probable cause, is subject to the discretion of the court. [44]

In this case, the Secretary of Justice, reversed himself in his March 22, 2007 Resolution, and directed the withdrawal
of the Information against Lim. In compliance with this directive, the prosecutor filed a Motion to Withdraw
Information on May 3, 2007. Flores, on the other hand, filed on May 22, 2007 a petition for certiorari before the

Court of Appeals to assail the March 22, 2007 Resolution of the Secretary of Justice. Then, on June 20, 2007, the
MTCC denied the Motion to Withdraw Information on the ground that, based on its own assessment, there exists
probable cause to hold Lim for trial for the crime of Other Deceits. In view of the June 20, 2007 MTCC
Resolution, Flores manifested before the Court of Appeals this disposition, attaching a copy of the said Resolution to
his pleading. Meanwhile, Lim filed a motion for reconsideration with the MTCC.Cognizant of the pending petition
for certiorari in the Court of Appeals and Lims motion for reconsideration of the June 20, 2007 Resolution, the MTCC
suspended the proceedings before it, and deferred the arraignment of Lim until the resolution
of Flores certiorari petition of the Court of Appeals.

We wish to point out that, notwithstanding the pendency of the Information before the MTCC, especially considering
the reversal by the Secretary of Justice of his May 31, 2006 Resolution, a petition for certiorari under Rule 65 of the
Rules of Court, anchored on the alleged grave abuse of discretion amounting to excess or lack of jurisdiction on the
part of Secretary of Justice, was an available remedy to Flores as an aggrieved party. [45]

In the petition for certiorari, the Court of Appeals is not being asked to cause the dismissal of the case in the trial
court, but only to resolve the issue of whether the Secretary of Justice acted with grave abuse of discretion in either
affirming or reversing the finding of probable cause against the accused. But still the rule standsthe decision
whether to dismiss the case or not rests on the sound discretion of the trial court where the Information was filed.
[46]
As jurisdiction was already acquired by the MTCC, this jurisdiction is not lost despite a resolution by the Secretary
of Justice to withdraw the information or to dismiss the case, notwithstanding the deferment or suspension of the
arraignment of the accused and further proceedings, and not even if the Secretary of Justice is affirmed by the
higher courts.[47]

Verily, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice, in spite
of being affirmed by the appellate courts, since it is mandated to independently evaluate or assess the merits of the
case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance on the
resolution of the Secretary of Justice alone would be an abdication of the trial courts duty and jurisdiction to
determine a prima facie case.[48] Thus, the trial court may make an independent assessment of the merits of the
case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the
records of the public prosecutor which the court may order the latter to produce before it; or any evidence already
adduced before the court by the accused at the time the motion is filed by the public prosecutor. [49] The trial court
should make its assessment separately and independently of the evaluation of the prosecution or of the Secretary
of Justice. This assessment should be embodied in the written order disposing of the motion to dismiss or the
motion to withdraw the information.[50]

This was precisely what the MTCC did when it denied the Motion to Withdraw Information in its June 20, 2007
Resolution, and it correctly did so. In view of the above disquisitions, and while the disposition of the issue of
whether or not the Secretary of Justice acted with grave abuse of discretion in not finding probable cause against
Lim may be persuasive, the MTCC is not bound to dismiss the case or to withdraw the Information. For these
reasons, the petition for certiorari before the Court of Appeals has effectively become moot and academic upon the
issuance by the MTCC of its June 20, 2007 Resolution. The March 6, 2008 Decision and the May 28, 2009 Resolution
of the Court of Appeals affirming the Secretary of Justice will really make no difference anymore.

As held in Auto Prominence Corporation v. Winterkorn,[51] pursuant to our ruling in Crespo and in the subsequent
related cases, this Court held

In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting
to lack or excess or jurisdiction in his determination of the existence of probable cause, the party
seeking the writ of certiorari must be able to establish that the Secretary of Justice exercised his

executive power in an arbitrary and despotic manner, by reason of passion or personal hostility,
and the abuse of discretion must be so patent and gross as would amount to an evasion or to a
unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of
discretion is not enough, it must amount to lack or excess of jurisdiction. Excess of jurisdiction
signifies that he had jurisdiction over the case, but (he) transcended the same or acted without
authority.

There is no escaping the fact that resolving the issue of whether the Secretary of Justice
committed grave abuse of discretion amounting to lack or excess of jurisdiction would necessarily
entail a review of his finding of lack of probable cause against the respondents AUDI AG officers.

If we should sustain the DOJ Secretary in maintaining that no probable cause exists to hold
respondents AUDI AG officers liable to stand trial for the crime they were charged with, our ruling
would actually serve no practical or useful purpose, since the RTC had already made such a
judicial determination, on the basis of which it dismissed Criminal Case No. 4824-A. Lest it be
forgotten, the fact that the Information against respondents AUDI AG officers had already been
filed in court, its disposition, i.e., its dismissal or the conviction of the accused, rests on the sound
discretion of the Court. And although the fiscal retains 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 of what to do with the case before it. The
determination of the case is within its exclusive jurisdiction and competence. Thus, the court may
deny or grant the motion to withdraw an Information, not out of subservience to the (Special)
Prosecutor, but in faithful exercise of judicial discretion and prerogative. For these very same
reasons, we must now refrain from resolving the issues raised by petitioners PPC and APC,
considering that the information against respondents AUDI AG officers had already been filed
before the RTC; the RTC acquired exclusive jurisdiction over Criminal Case No. 4824-A; and it has
already rendered judgment dismissing the charges against respondents AUDI AG officers.

This is not to say that we are already affirming the 2 July 2008 Order of the RTC dismissing
Criminal Case No. 4824-A. To the contrary, we are much aware that petitioners PPC and APCs
Motion for Reconsideration of the said order of dismissal is still pending resolution by the trial
court. By refusing to go into the merits of the instant Petition, we are only respecting the
exclusive jurisdiction of the RTC over Criminal Case No. 4824-A and avoiding any pronouncement
on our part which would preempt its independent assessment of the case. Irrefragably, a
determination by us that probable cause against respondents AUDI AG officers does or does not
exist would strongly influence, if not directly affect, the resolution by the RTC of the matter still
pending before it. In any case, the party that would feel aggrieved by the final judgment or order
of the lower court in Criminal Case No. 4824-A has the option of elevating the same to the higher
courts. And if only for the orderly administration of justice, the proceeding in Criminal Case No.
4824-A, that is, the resolution of the pending motion for reconsideration filed by petitioners PPC
and APC, should be allowed to continue and take its course.

Under the circumstances, the denial of the present Petition is clearly warranted for being
moot. Where a declaration on an issue would have no practical use or value, this Court will refrain
from expressing its opinion in a case where no practical relief may be granted in view of a
supervening event. Thus, it is unnecessary to indulge in academic discussion of a case presenting
a moot question, as a judgment thereon cannot have any practical legal effect or, in the nature of
things, cannot be enforced.[52]

Anent the second issue, suffice it to state that these matters are best addressed to the MTCC, where they
will be thoroughly ventilated and threshed out in the resolution of Lims motion for reconsideration of the MTCC June
20, 2007 Resolution, and eventually, if the trial court denies the motion, during the trial on the merits before it.

WHEREFORE, the petition is GRANTED. The petition for certiorari before the Court of Appeals in CA-G.R. SP No.
02726 is declared MOOT AND ACADEMIC.Consequently, the assailed Decision dated March 6, 2008 and the
Resolution dated May 28, 2009 of the Court of Appeals in the said case are SET ASIDE. No costs.
SO ORDERED.