Crimes Committed by Public Officers

10. G.R. No. L-19748

PAULINO J. GARCIA, petitioner, vs. THE HON. EXECUTIVE SECRETARY
Facts:
This is a petition filed by petitioner, Dr. Paulino J. Garcia, Chairman of the National Science
Development board created by Republic Act 2067 otherwise known as the "Science Act of 1958"
against the respondent Executive Secretary and Juan Salcedo, Jr., the latter in his capacity as
Acting Chairman of the same National Science Development Board, in the form of quo warranto
and prohibition with preliminary injunction, with prayer that the further preventive suspension of
petitioner beyond the maximum period of 60 days, provided in Section 35 of the Civil Service Act
of 1959 (Rep. Act 2260), be declared illegal and void, and that respondent Juan Salcedo, Jr. be
likewise declared guilty of unlawfully holding and exercising the functions of the office of
Thus, the preventive suspension took effect on Monday, February 18, 1962. On the day
previous, or on Sunday, February 17, 1962, the respondent Juan Salcedo, Jr. was designated by
the President as Acting Chairman of the National Science Development Board.
By Administrative Order No. 5 dated February 17, 1962, an investigating committee was
created.
In view of his indefinite suspension, petitioner, on May 5, 1962, filed the present petition praying
in effect that the 60-day period prescribed in the Civil Service law for preventive suspension
having already expired on April 19, 1962, he be reinstated in the service pursuant to Section 35
of the said Act.
Issue: W/N Sec 35 of the Civil Service Act is an applicable remedy for the petitioner.
Ruling:
The clear-cut issue, therefore, before us is the effect and scope of the aforementioned Section
30 of the Civil Service Act, which reads:
"SEC. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the
administrative case against the officer or employee under preventive suspension is not finally
decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of
suspension of the respondent, the respondent shall be reinstated in the service. If the
respondent officer or employee is exonerated, he shall be restored to his position with full pay for
the period of suspension."
The first sentence of Section 35 stating that "when the administrative case against the officer or
employee under preventive suspension is not finally decided by the Commissioner of Civil
Service within the period of 60 days after the date of suspension of the respondent, the
respondent shall be reinstated in the service", merely demonstrates, we believe, the feeling of
Congress that, in line with its policy of strengthening the Civil Service of the nation and
protecting it from the inroads of partisan political considerations, pursuant to the spirit of the
Constitution, all disciplinary administrative cases should pass through the impartial scrutiny of
the Commissioner of Civil Service, even though the final decision on the matter may not be his,
as an appeal from such decision of the Commissioner to the Civil Service Board of Appeals is
expressly authorized by Section 36 of the same law. So also, it may be conceded without
deciding, may the President, in the exercise of his power of control and supervision over all
offices and departments, of the executive branch of the government, revise, review, or revoke
the decisions of the Commissioner of Civil Service and of the Civil Service Board of Appeals. Put
this power has nothing to do with the preventive suspension, because this is not intended to be
a penalty. As explained by Senator Francisco A. Rodrigo, sponsor of the bill which later became
the Civil Service Act of 1959 (Rep. Act 2260), "suspension cannot be more than 60 days -

Chairman of the National Science Development Board since April 19, 1962, date of the
expiration of the said 60-day period.
As a result of the last national elections held in November, 1961, a change of administration took
place. Shortly thereafter, or on February 9,1962, after petitioner declined to heed what
respondents admit as the new Assistant Executive Secretary Rodrigo Perez's "friendly gesture of
advising petitioner to resign from his position in order to avoid the unpleasant consequences of
having to face an administrative action for violation of the Revised Administrative Code on the
basis of evidence then on hand", respondent Executive Secretary required petitioner in writing to
explain charges for alleged electioneering based on the affidavits of four individuals. On
February 15, petitioner submitted his written explanation denying under oath the said charges
claiming them to be false, malicious and unsubstantial. On the following day, February 16,
respondent Executive Secretary advised petitioner, by authority of the President, that his
explanation was found unsatisfactory, and immediately ordered his preventive suspension from
office effective upon receipt of the communication.
preventive suspension. Even if the case drags on for six months or a year, after 60 days of
preventive suspension, the suspended employee is reinstated." (Senate Congressional Record,
Vol. II, No. 69, p. 2001). It may be noted that Senator Rodrigo did not make any distinction
between the preventive suspension of officers by the President and that by the chief of office or
bureau, and Section 35 as passed did not contain any such distinction. Neither is such
distinction justifiable, for there is no cogent reason - and none has been suggested - why the
protection granted to subordinate employees is not to be applied to more important public
officers. As this Court has ruled in the case of Severino Unabia vs. The Hon. City Mayor, et al.
(53 O.G., No. 1, pp 133-134) ". . . There is no reason for excluding persons in the unclassified service from the benefits
extended to those belonging to the classified service. Both are expressly declared to belong to
the Civil Service; hence, the same rights and privileges should be accorded to both. Persons in
the unclassified service are so designated because the nature of their work and qualifications
are not subject to classification, which is not true of those appointed to the classified service.
This can not be a valid reason for denying privileges to the former that are granted to the latter."
Where the tenure of office is fixed, as in the case of herein petitioner, which according to the law
he could hold "for 6 years and shall not be removed therefrom except for cause", to sanction the
stand of respondents would be to nullify and render useless such specific condition imposed by
the law itself. If he could be preventively suspended indefinitely, until the final determination of
the administrative charges against him (and under the circumstances, it would be the President
himself who would decide the same at a time only he can determine) then the provisions of the
law both as to the fixity of his tenure and the limitation of his removal to only for cause would be
meaningless. In the guise of a preventive suspension, his term of office could be shortened and
he could in effect, be removed without a finding of a cause duly established after due hearing, in
violation of the Constitution. This would act at naught the laudable purpose of Congress to
surround the tenure of office of the Chairman of the National Science Development Board, which
is longer than that of the President himself, with all the safeguards compatible with the purpose
of maintaining the office of such officer, considering its highly scientific and technological nature,
beyond extraneous influences, and of insuring continuity of research and development activities
in an atmosphere of stability and detachment so necessary for the fulfillment of its mission,
uninterrupted by factors other than removal for cause.
Upon these considerations, there is unanimity of opinion among the members of this Court that
the preventive suspension in the case of officers, although appointed by the President but with a
fixed term and removable only for cause, cannot be indefinite. To some of the members, the
provisions of Section 35 limiting the duration to 60 days is applicable to herein petitioner, as, in
their view, it evinces a legislative policy that preventive suspension of a public officer is not lightly
to be resorted to, but only after a previous serious and thorough scrutiny of the charges and that
the prompt and continued hearing thereof should not be hampered, both in justice to the
suspension officer who is without salary during suspension, and in the interest of public service

to avoid as much as possible the interruption of the efficient functioning of the office that the
suspended official holds. Other justices, however are of the opinion that while said period may
not apply strictly to cases of presidential appointees facing administrative charges to be decided
by the President, the preventive suspension shall nevertheless be limited to a reasonable
period, and in the circumstances of the present case, they too believe that the further
suspension of herein petitioner, who has been under preventive suspension since February 18,
1962, would no longer be reasonable.
WHEREFORE, decision is hereby rendered holding petitioner Dr. Paulino J. Garcia entitled to
immediate reinstatement to his position as Chairman of the National Science Development
Board, without prejudice to the final outcome of the investigation of the charges against him on
which no opinion is here expressed. Respondent Juan Salcedo, Jr. is hereby ordered to
immediately vacate and cease to exercise the functions of the said office and to deliver the same
to herein petitioner Paulino J. Garcia. No costs. So Ordered.
11. JOSE C. LUCIANO, vs. THE PROVINCIAL GOVERNOR (1969)
Facts:
The petition now before us, originally for mandamus filed by Jose C. Luciano, Councilor of
Makati, Rizal, who received the highest number of votes in the last general elections of 1967, to
compel the Provincial Governor and/or the Provincial Board of Rizal under Section 13 of the
Anti-Graft and Corrupt Practices Act to suspend Makati Mayor Maximo Estrella and others, soon
branched out to include quo warranto to have petitioner declared to be entitled to act as Mayor
of Makati, Rizal and, thereafter, further expanded to add a prayer for injunction against newly
named party respondents, Judges Delfin B. Flores and Herminio C. Mariano, both of the Court
of First Instance of Rizal, and the Court of Appeals, because said judges and the Court of
Appeals have restrained or enjoined the suspension of Mayor Estrella and others.
In the general elections of November 14, 1967, the following were declared elected municipal
officials of Makati, Province of Rizal; Mayor Maximo B. Estrella; Vice-Mayor Teotimo Gealogo;
Councilors (1) Jose C. Luciano, (2) Justino Ventura, (3) Johnny Wilson, (4) Pedro P. Ison (5)
Bernardo P. Nonato, (6) Ignacio C. Babasa, (7) Juan E. Tengco, and 8) Cesar C. Alzona.
On January 18, 1969, First Assistant Provincial Fiscal B. Jose Castillo instituted Criminal Case
18821 in the Court of First Instance of Rizal against Makati Mayor Maximo Estrella, Vice-Mayor
Teotimo Gealogo, Councilors Justino Ventura, Pedro Ison, Ignacio Babasa, and Bernardo
Nonato (respondent elective municipal officials) and others, for violation of Sections 3-G and 4-B
of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. 1 The criminal
information therefor substantially charged that, on or about July 26, 1967, Mayor Estrella and his
co-accused, conspiring and confederating together, unlawfully entered into a contract with JEF
Enterprises for delivery and installation of 59 traffic deflectors valued at P1,426.50 each, 34 units
thereof having been delivered, installed and paid for in the total amount of P48,841.00, less 10%
which was retained, such contract being manifestly and grossly disadvantageous to the
municipal government of Makati and to the latter's prejudice.
Because of the pendency of the foregoing case, the Provincial Governor suspended the said
officials based on Section 13 of Republic Act 3019, it was the mandatory duty of the Provincial
Governor to suspend Mayor Estrella and the other elective municipal officials who were
prosecuted with the latter, pending final judgment in Criminal Case 18821.
In the meanwhile, on March 18, 1969, as stated at the start of this opinion, petitioner, in his
capacity as No. 1 Councilor of Makati and as a private citizen residing in Makati, commenced
the present mandamus proceedings in this Court; on March 25, 1969, the mandamus petition
was amended to include quo warranto as another cause of action and to implead respondent
local officials of Makati.

Then, on May 17, 1969, Judge Andres Reyes rendered judgment in Criminal Case 18821 earlier
adverted to. Herein respondent municipal officials, with others, were convicted.
On May 20, 1969, Mayor Estrella and his Secretary, Ciriaco Alano, filed in the Court of First
Instance of Rizal (Civil Case 11802, entitled "Ciriaco Alano and Maximo Estrella, Petitioners,
versus Jose Luciano, Respondent") what appears to be a case for injunction with prayer for
preliminary injunction against petitioner Jose C. Luciano, to stop the latter from assuming the
post of Mayor. The petition averred inter alia that although the decision of Judge Reyes ordered
the removal from office of Mayor Estrella and his other co-accused within 24 hours after receipt
of the decision, they appealed to the Court of Appeals on the same day that the decision was
promulgated; that in view of the appeal, said decision had not become final and executory and
could not be executed in any way; that said appeal notwithstanding, petitioner Luciano had
publicly announced that he would assume on that day, May 20, the post of Mayor in the
company of Philippine Constabulary soldiers, sheriffs and other agents and men with the threat
of using force and violence; that such forcible assumption was improper and contrary to law
because there was no vacancy to be filled, and even if there was, it was the Provincial Governor
who could fill up the vacancy by appointment; and that petitioner Luciano also threatened to
dismiss therein petitioner Ciriaco Alano.
Judge Herminio C. Mariano enjoined the petitioner for the said act. The May 27 hearing was
held but Civil Case 11802 was ordered dismissed by Judge Mariano upon joint petition of the
parties.
Estrella and the other respondent municipal officials of Makati went to the Court of Appeals,
allegedly in aid of the latter's appellate jurisdiction in Criminal Case 18821, on certiorari,
prohibition and mandamus with prayer for preliminary injunction against Judge Andres Reyes
and Provincial Sheriff Nicanor Salaysay, to stop the latter two in their attempt to enforce the
removal order contained in the decision of Case 18821. 4 It was there alleged, amongst others,
that, in view of therein petitioners' appeal, "said decision has not become final and executory
and its executory or enforcement has been and is stayed"; that therein respondent Salaysay had
been directed by Judge Reyes to continue to enforce and execute his decision of "removal"; and
that respondent Judge Reyes threatened to cancel the bail bonds of therein petitioners and
cause their arrest.
On May 21, 1969, the Court of Appeals issued a temporary restraining order against therein
respondents.
Meantime, on May 21, 1969, petitioner Luciano filed before this Court in the present case a
motion for preliminary mandatory injunction to order the Provincial Governor and/or Provincial
Board to immediately suspend respondent elective municipal officials of Makati and to either
install petitioner or recognize his right as Acting Mayor pending final determination of this case.
Issue #1
W/N reelection of a public official does bar the prosecution for crimes committed prior
thereto by said official.
Ruling:
The first problem we are to grapple with is the legal effect of the reelection of respondent
municipal officials. Said respondents would want to impress upon us the fact that in the last
general elections of November 14, 1967 the Makati electorate reelected all of them, except the
Vice-Mayor Teotimo Gealogo, a councilor prior thereto, was elevated to vice-mayor. These
respondents contend that their reelection erected a bar to their removal from office for
misconduct committed prior to November 14, 1967. It is to be recalled that the acts averred in
the criminal information in Criminal Case 18821 and for which they were convicted allegedly
occurred on or about July 26, 1967, or prior to the 1967 elections.
A cursory look at Republic Act 3019 leads one to conclude that it makes no time distinctions.
Indeed, heavy compulsion there is for us to say that the Act's statement of policy clearly points

the other way. Section 1 of said Act reads: "It is the policy of the Philippine Government, in line
with the principle that a public office is a public trust, to repress certain acts of public officers and
private persons alike which constitute graft or corrupt practices or which may lead thereto."
Implicit in the foregoing lines is congressional respect for the sacredness of a public office which
must be kept clear of grafting and corrupting officials who, everyone knows, are the bane of
public administration. In this context, it is immaterial when a repressible act is committed by a
public officer. More specifically, we cannot draw a line between acts done during a former term
of office of a particular public officer and acts done during a later term. The law does not
distinguish. It is impermissible for us to do so.
And more. One of the penalties that attach under the Anti-Graft and Corrupt Practices Act, it
must be noted, is "perpetual disqualification from public office." 7 The relevance here of this
penalty is that it extends beyond a particular term of office. For, the disqualification is perpetual.
We, accordingly, hold that under the Anti-Graft and Corrupt Practices Act, reelection of a public
official does not bar prosecution for crimes committed prior thereto by said official.
Issue #2 : W/N the suspension mentioned in Section 13 of Republic Act 3019 automatic.
Ruling:

vs. Castillo (1969), 26 SCRA 853, because the main respondents are elective municipal officials,
that power of suspension must be held to repose in the Provincial Board, under Section 5 of the
Decentralization Act of 1967 (Republic Act 5185). The third is that, by Section 13 of the AntiGraft and Corrupt Practices Act, solely the court in which the criminal case has been filed shall
wield the power of suspension.
We opt for the third. Common sense and the scheme of the law so dictate.
It is true to say that nothing in Section 13 of the Anti-Graft and Corrupt Practices Act grants with
specifity upon the Court of First Instance the power to suspend an official charged with a
violation thereof. It would seem to us though that suspensions by virtue of criminal proceedings
are separate and distinct from suspensions in administrative cases. An accurate reading of
Section 13 yields two methods of investigation, one separate from the other: one criminal before
the courts of justice, and the other administrative. This is the plain import of the last sentence of
Section 13, which says that if acquitted, defendant in an Anti-Graft and Corrupt Practices case
"shall be entitled to reinstatement and to the salaries and benefits which he failed to receive
during suspension, unless in the meantime administrative proceedings have been filed against
him." 9 Our interpretation but preserves, as it should, the substantial symmetry between the first
part of Section 13 and the last part thereof just quoted.

Section 13 provides:
SEC. 13. Suspension and loss of benefits. Any public officer against whom any
criminal prosecution under a valid information under this Act or under the provisions of
the Revised Penal Code on bribery is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and
to the salaries and benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.
The language of the law can be no clearer. It provides that any public officer charged under a
valid information "shall be suspended from office." It does not say "is suspended" or "is deemed
suspended." It uses the word "shall". We think it evident upon the terms of the statute that there
must be someone who shall exercise the act of suspension.
Adding strength to this view is that in line with the statutory text of Section 13, the suspension
spoken of follows the pendency in court of a criminal prosecution under a "valid information".
Adherence to this rigoristic requirement funnels us down to no other conclusion than that there
must, first of all, be a determination that the information filed is valid before suspension can be
effected. This circumstance militates strongly against the notion that suspension is automatic.
Suspension is, however, mandatory. The word "shall" used in Section 13 is an express index of
this conclusion. 8
We, therefore, hold that the suspension envisioned in Section 13 of Republic Act 3019 is
mandatory but is not self-operative.
Issue #3 : W/N the Provincial Governor should exercise the mandatory act of suspension
under Section 13 of the Anti-Graft and Corrupt Practices Act.
Ruling: Three theories have been advanced. One is that the power of suspension where a
criminal case has already been filed in court still is with the Provincial Governor, relying on
Section 2188 of the Revised Administrative Code. Another is that, following the ruling in Sarcos

And so, there is in this legal provision a recognition that once a case is filed in court, all other
acts connected with the discharge of court functions which here include suspension should
be left to the Court of First Instance.
Since removal from office then is within the power of the court, no amount of judicial
legerdemain would deprive the court of the power to suspend. Reason for this is that suspension
necessarily is included in the greater power of removal. 11 It is without doubt that Congress has
power to authorize courts to suspend public officers pending court proceedings for removal and
that the congressional grant is not violative of the separation of powers. For, our Constitution
being silent, we are not to say that from Congress is withheld the power to decide the mode or
procedure of suspension and removal of public officers. Once valid information upon the
provisions thereof is lodged with the Court of First Instance, that court has the inescapable duty
to suspend the public official indicted there under.
As for the Provincial Governor, we find no cause or reason why we should break away from the
view espoused inSacros that since the passage of the Decentralization Act of 1967, his power of
suspension has been abrogated.
Issue #4 : W/N the mayoralty of Makati should be succeeded to Jose Luciano.
Section 7 of the Local Autonomy Act reads:
Sec 7. The city, municipal and municipal district vice-mayor and succession to the
office of mayor. The vice-mayor of every city, municipality or municipal district shall
assume the office of mayor for the unexpired term of the latter in the event of
permanent vacancy in the office of mayor. If for some reason the vice-mayor is
incapacitated from assuming the office of mayor or refuses to assume such office, the
councilor who obtained the largest number of votes in the local elections immediately
preceding shall assume the office of mayor. If for some reason the councilor who
obtained the largest number of votes in the local elections immediately preceding is
incapacitated from assuming the office of mayor or refuses to assume such office, the
councilor who obtained the next largest number of votes in the local elections
immediately preceding shall assume the office of mayor, and so on until the
permanent vacancy in the office of mayor is filled.

Should the mayor-elect die before assumption of office or fail to qualify for any reason,
the vice-mayor-elect shall assume the office of mayor, but in the latter case, he shall
hold such office only until the mayor-elect qualifies. If for some reason the vice-mayorelect is incapacitated from assuming the office of mayor or refuses to assume such
office, the councilor-elect who obtained the largest number of votes, in the local
elections immediately preceding shall assume the office of mayor. If for some reason
the councilor-elect who obtained the largest number of votes in the local elections
immediately preceding is incapacitated from assuming the office of mayor or refuses
to assume such office, the councilor-elect who obtained the next largest number of
votes in the local elections immediately preceding shall assume the office of mayor,
and so on until the office of mayor is filled.
In the event of temporary incapacity of the mayor to perform the duties of his office on
account of absence on leave, sickness, or any temporary incapacity, the vice mayor
shall perform the duties and exercise the powers of the mayor except the power to
appoint, suspend or dismiss employees. In the event the vice-mayor is temporarily
indicated to perform the duties of the office of mayor, the councilor who obtained the
largest number of votes among the incumbent councilors in the local elections
immediately preceding shall perform the duties and exercise the powers of the mayor
except the power to appoint, suspend or dismiss employees.
The provisions of this section shall not apply to cities which have no elective mayors
and/or vice-mayors.
It is thus our conclusion that, because of the temporary incapacity of the Mayor and Vice-Mayor
of Makati, Rizal, the Councilor who obtained the largest number of votes among the incumbent
Councilors in the local election immediately preceding who, in this case, is petitioner Jose C.
Luciano, should, by the law, ordinarily "perform the duties and exercise the powers of the mayor"
except as the statute so directs the power to appoint, suspend or dismiss employees, which
after all is not inherent in one acting in a temporary capacity.
Dispositive Portion:
(1) Declaring that respondents Mayor Maximo Estrella, Vice-Mayor Teotimo Gealogo
and Councilors Justino Ventura, Pedro Ison, Ignacio Babasa and Bernardo Nonato, all
of the Municipality of Makati, Province of Rizal, are suspended from the discharge of
the duties and the exercise of the functions of their respective public offices by virtue
of, and as of the date of the promulgation of, the decision in Criminal Case 18821 of
the Court of First Instance of Rizal; and directing that, in pursuance of such
suspension, those of said respondents who are still discharging the duties and
exercising the functions of their respective offices forthwith cease and desist from so
doing;
(2) Declaring null and void the preliminary injunction issued by respondent Judge
Delfin B. Flores in Civil Case 11593 of the Court of First Instance of Rizal and
permanently enjoining him, or whoever acts in his place, from further proceeding with
the said case;
(3) Declaring null and void the order of respondent Provincial Governor of Rizal dated
June 3, 1969 suspending petitioner Jose C. Luciano as Municipal Councilor of Makati,
Rizal;

(4) Permanently enjoining the Court of Appeals from enforcing the preliminary
injunction issued by the court in CA-G.R. 43239-R insofar as it prevents the
suspension of respondent elective municipal officials herein; and .
(5) Declaring that petitioner Jose C. Luciano is entitled to sit as Acting Mayor of
Makati, Rizal.
12. JOSE C. LUCIANO vs. HON. HERMINIO C. MARIANO (1971)
Facts:
A petition for writs of certiorari, mandamus and prohibition, pleading grave abuse of discretion
and excess of jurisdiction on the part of respondent court in issuing its questioned order of
December 15, 1970 in that (a) no proper preliminary investigation or review of the criminal antigraft charge against petitioners was conducted by respondent provincial fiscal and (b)
respondent court, without holding the hearing on the validity of the information previously
ordered by this Court, prematurely and improperly held the questioned information to be valid,
paving the way for the imminent wrongful suspension from office of petitioner Jose C. Luciano,
incumbent acting mayor of Makati, Rizal, as a necessary consequence thereof.
As a consequence of our decision in G.R. No. L-30306 (Jose C. Luciano vs. Provincial Governor
of Rizal, et al.) promulgated on 20 June 1969, upholding the suspension from office, by the
Court of First Instance of Rizal, of elected Mayor Maximo Estrella et, al as a result of their having
been found guilty of violation of Republic Act 3019 (Anti-Graft and Corrupt Practices Act), then
ranking Councilor Jose C. Luciano entered into the office of and duly qualified as Acting Mayor
of Makati.
The records show, however, that on 30 May 1969, or prior to his assumption of the mayorship,
petitioner Luciano, together with Florentino S. Rolls, was himself charged with violation of the
Anti-Graft and Corrupt Practices Law before the Court of First Instance of Rizal, in an
information signed by then Provincial Fiscal Benjamin H. Aquino (Criminal Case No. 19346).
To forestall his suspension from public office, Luciano filed with this Court on 3 June 1969 a
petition for prohibition to restrain the Provincial Fiscal from filing the information against him;
The petition was based on the allegations that the disputed information, although dated 29 May
1969, was actually transmitted to the Court of First Instance of Rizal only on 30 May 1969, the
very day when the respondent fiscal took his oath of office as judge of the Rizal Court of First
Instance; and that such criminal information was filed without the respondent fiscal having
conducted a preliminary investigation and without giving the accused (petitioner) notice and
opportunity to be heard. On 5 June 1969, this Court dismissed the petition.
petitioner filed with the lower court a motion to allow the holding of a preliminary investigation of
the case, on the same ground of lack of preliminary investigation. On 14 June 1969, this motion
was denied, the court below pointing out that the information carried a verified certification by the
provincial fiscal that he had conducted the required preliminary investigation on the case.
Nevertheless, considering that said fiscal had been appointed to the judiciary, the court ventured
the opinion that there was nothing wrong in the incumbent Provincial Fiscal's conducting a
reinvestigation or review of the evidence in the hands of the prosecution. Thus, the latter was
given 30 days from receipt of the order within which to signify in writing whether or not he
deemed it necessary to conduct a reinvestigation of the case.
Finally, in a written manifestation dated 15 December 1969, the Provincial Fiscal informed the
court that he had conducted a preliminary investigation and/or reinvestigation of the case. The
Fiscal find the case be deemed submitted for resolution; and that taking into consideration the
aforesaid evidence previously adduced together with the memoranda of the parties he (the
fiscal) believed that there existed sufficient evidence to establish prima facie the guilt of the
accused.

The accused filed with the respondent court an urgent motion for reconsideration of said order
and for the holding in abeyance of the suspension-directive. It also appears from the record that
at 2:45 in the afternoon of that day, 15 December 1969, respondent Johnny Wilson, the Acting
Vice-Mayor, took an oath of office as Acting Mayor of Makati before a judge of the Court of First
Instance of Rizal.
Acting on petitioner's prayer we issued a temporary restraining order against respondent
Provincial Governor, to prevent him from appointing respondent Wilson as Acting Mayor of
Makati, Rizal, and the latter from usurping and intruding into the office of petitioner as Acting
Mayor.
Issue #1 :Whether or not there had been a proper preliminary investigation of the graft
charge prior to the filing of the information therefor against petitioners
As late as the date the present petition was heard by the Court on January 19, 1971, the
stenographic notes of all testimonial evidence given before state prosecutor Barot 14 during the
hearings at the preliminary investigation of the original charge for falsification had not yet been
transcribed and could not therefore be reviewed. Upon interpellation, Fiscal Castillo confirmed
this fact, as well as the further fact that neither Fiscal Aquino nor the stenographer had apprised
him of the contents of said notes. Fiscal Castillo could not therefore inform this Court of the
factual and legal bases for the information filed by his predecessor in office 15 and consequently
manifested in open court his readiness and willingness to conduct a preliminary investigation in
fairness to petitioners.
Legally, respondent court's theory that under the same preliminary investigation for the crime of
falsification which was ordered dismissed by the investigating fiscal with the approval of then
provincial fiscal Aquino and fiscal Castillo as being "without any factual or legal basis", that
petitioners could nevertheless be charged on the basis of the records with the graver crime of
violation of the Anti-Graft and Corrupt Practices Law, the dependency of which under a valid
information carries mandatory suspension from office, 16 has been rejected by this Court.
InBandiala vs. Court of First Instance of Misamis Occidental, 17 where the preliminary
investigation was for robbery in band (with one of the two accused waiving the second stage),
the Court held that the provincial fiscal could not file against the accused an information for the
graver crime of robbery with kidnapping, without giving the accused "ample opportunity at a fullblown preliminary investigation to demonstrate that what the fiscal regards as "kidnapping" in the
legal sense was merely an incident of, and is therefore absorbed in the crime of robbery." The
Court noted once again that "(A) preliminary investigation, it must be borne in mind, is a practical
device created by statute and by mandate of our Rules of Court, principally for the purpose of
preventing hasty, malicious and ill-advised prosecutions," and pointedly emphasized that "(T)he
Rules of Court on the matter of preliminary investigation, construed in their integrated entirety,
direct that, in the circumstances here obtaining, the Fiscal, if he believes that he should raise the
category of the offense, must conduct a preliminary investigation anew as to the entire charge.
Fundamental principles of fair play dictate this course of action. The Fiscal is not allowed by the
Rules of Court to wait in ambush; the role of a Fiscal is not mainly to prosecute, but essentially
to do justice to every man and to assist the courts in dispensing that justice."
Issue #2: W/N there was valid information.
Respondent court held no hearing whatsoever on this second issue, disregarding petitioners'
prayer at the hearing of October 26, 1970 that it reset the issue for the required hearing, should
it resolve adversely, as it did, the first issue of whether there had been due preliminary
investigation.
Respondent court's premptory * ruling and advance pronouncement that what remained for it to
do "is to try the case on the merits" rendered moot the petitioners pending motion to quash and

its scheduling the same for hearing on December 21-23, 1970, in the light of its frequent
references at the preliminary hearing of October 13, 1970, 20 to this Court's "overwhelming
statements" in Luciano vs. Provincial Governor, 21 to the effect that "suspension is a sequel to
that finding (of a valid information), an incident to the criminal proceedings before the Court" and
that "under section 13 of the Anti-Graft and corrupt Practices Act, once a valid information upon
the provisions thereof is lodged with the Court of First Instance, that court has the inescapable
duty to suspend the public official indicted thereunder." These statement were however taken by
respondent court out of context for in the said case ofLuciano vs. Prov. Governor, the
suspension order against Mayor Estrella, et al. as upheld by this Court came only in the trial
court's judgment of conviction and the validity of the information could no longer be questioned
and was not in issue.
Dispositive Portion
By way of broad guidelines for the lower courts in the exercise of the power of suspension from
office of public officers charged under a valid information under the provisions of Republic Act
3019 or under the provisions of the Revised Penal Code in bribery, pursuant to section 13 of
said Act, 23 it may be briefly stated that upon the filing of such information, the trial court should
issue an order with proper notice requiring the accused officer to show cause at a specific date
of hearing why he should not be ordered suspended from office pursuant to the cited mandatory
provisions of the Act. Where either the prosecution seasonably files a motion for an order of
suspension or the accused in turn files a motion to quash the information or challenges the
validity thereof, such show-cause order of the trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the parties at a hearing held for determining the
validity of the information, and thereafter hand down its ruling, issuing the corresponding order of
suspension should it uphold the validity of the information or withholding such suspension in the
contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that
the accused should be given a fair and adequate opportunity to challenge the validity of the
criminal proceedings against him, e.g. that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not constitute a violation of the
provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under section 13 of the Act; or he
may present a motion to quash the information on any of the grounds provided in Rule 117 of the
Rules of Court. The mandatory suspension decreed by the Act upon determination of
the pendency in court of a criminal prosecution for violation of the Anti-Graft Act or for bribery
under a valid information requires at the same time that the hearing be expeditious, and not
unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the
trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall
be called upon to issue the suspension order upon its upholding the validity of the information
and setting the same for trial on the merits.
(e) In the case at bar, ruling on the validity of the information is to be held in abeyance until after
the outcome of the preliminary investigation to be conducted by respondent provincial fiscal of
the graver charge of alleged violation of the Anti-Graft Law, and hence no suspension order can
issue. Should the fiscal find no case, he will then so inform respondent court and move to
dismiss the case. In the contrary case, respondent court will then have to hear and decide
petitioners' pending motion to quash before it, which squarely raises question that the facts
charged do not constitute an offense and are not punishable under section 3 (a) and (e) of
Republic Act No. 3019, contrary to the information's averment.
ACCORDINGLY, the writ of certiorari is granted and respondent court's order of 15 December
1970 in Criminal Case No. 19346 is set aside and annulled. Respondent court is further directed

to hold in abeyance all proceedings in said case until after the outcome of the new preliminary
investigation herein ordered, and thereafter to proceed in accordance with law as hereinabove
indicated. The writ of mandamus is granted against respondent provincial fiscal who is hereby

directed to conduct in accordance with law a preliminary investigation of the charge against
petitioners for violation of Republic Act No. 3019 as alleged in the information in Criminal Case
No. 19346, No costs.